Legal and business news from the IBA - April/May 2016

Cuba and sanctions: IBA and ONBC join forces to support transition to ‘new legal reality’

Ruth Green

As the US eases trade restrictions with Cuba, a new training programme organised by the IBA and Cuba’s National Organization of Collective Law Offices (ONBC) is set to prepare the country’s lawyers for a new era of legal practice.

Cuba has an extremely active legal profession, but the country’s traditionally closed economy and ban on private practice has limited the majority of Cuba’s lawyers to working for state-run entities on solely domestic transactions.

This has created a knowledge gap that needs to be filled urgently, says former IBA President Fernando Peláez-Pier, who has been heavily involved in the IBA’s ongoing work
in Cuba.

‘We must remember that the Cuban legal profession has exercised law in a limited fashion over the past five decades, mainly focusing on civil law, criminal law and disputes,’ he says. ‘Only a small group of Cuban lawyers over this period have had the opportunity to participate in international transactions or represent foreign companies’ businesses and interests in Cuba. Cuban lawyers have excellent professional training, but limited or no experience in international transactions.’

The recent shift in US–Cuban relations confirmed the demand for a nationwide training programme, says Mark Ellis, the IBA’s Executive Director. ‘Training lawyers to engage in international commercial transactions is even more urgent since the normalisation of US–Cuban relations, and there’s a real eagerness from lawyers in Cuba to engage with the IBA,’ says Ellis.

Although the programme starts this month, Peláez-Pier says the groundwork for the initiative began several years ago when Cuba’s current President, Raúl Castro, first started to introduce economic reforms.

‘This initiative emerged before the “normalisation” of relations between the US and Cuba, specifically when Raúl Castro introduced certain changes in the Cuban economy, which might be considered somewhat insignificant in a capitalist or free market system, but for Cuba were of great importance,’ he says. ‘It was then that the IBA proposed to re-establish contact with the relevant bodies that oversee the legal profession in Cuba, to look at the possibility of contributing to the development and training of lawyers in certain subject areas.’

“ Our country is currently witnessing a reform of its economic model, driven by an agreed roadmap

Ariel Mantecón Ramos
President, ONBC

Together with the ONBC, which was established in 1965 and today oversees the practice of 187 law firms in Cuba, the IBA designed a training programme, which draws on the experience of the existing distance-learning LLM it runs in conjunction with the University of Law in London.

‘We worked with the ONBC and picked a number of modules from the LLM that are specifically geared towards commercial lawyers,’ says Ellis. ‘We were most concerned with consistency, and the idea was to take the courses that have already stood the rigour of educational oversight and select the most appropriate modules, translate them into Spanish and then our selected course leaders would teach from these modules.’

The one-year programme, which starts on 25 February, will cover four core practice areas – international sales, corporate M&A, intellectual property and arbitration. The four sessions will each take place over three days in the ONBC’s resident training centre in Havana and will be attended by 40 lawyers from law firms across the island.

Elizabeth Moya Linares, Director of Development at the ONBC, believes the training will help local lawyers prepare for the prospect of participating in international cross-border work. ‘Forty lawyers from all provinces across the country are due to attend the training, and this is very important because it will help improve their ability to confront the new professional challenges they will encounter in this new economic scenario,’ she says.

Ariel Mantecón Ramos, President of the ONBC, agrees the sessions will stand the lawyers in good stead to practise law in a new era for Cuba’s economy. ‘Our country is currently witnessing a reform of its economic model, driven by an agreed roadmap,’ he says. ‘This resolution will have a strong impact on foreign investment and on our relationship with issues outside of the economy, but this process will need to be accompanied by the law and the legal profession.

‘The impact of this course will be seen in its ability to prepare our lawyers to confront this new legal reality by exposing them to topics in which they have only been able to gain partial expertise up until now. It will be a very positive experience for them.’

The IBA has selected course leaders from its pool of Spanish-speaking experts in each of the four subject areas. At the end of each session the lawyers will be required to prepare some work for assessment, and after the final session in November they will be examined on all four topics.

Upon successful completion of the programme each lawyer will receive a corresponding diploma. All course costs will be covered by the IBA, and it is hoped the programme will be extended to cover other practice areas in 2017.

Ellis says the decision by the ONBC to include an assessed component within the programme is indicative of the significance it holds for Cuba’s legal profession. ‘The ONBC and its President are the ones that have pushed for the lawyers to be examined at the end of the programme, which to me is very impressive and I think this shows they realise the importance of the commitment,’ he says. ‘Lawyers really understand that the legal profession will play a very important role in the transformation that is occurring in Cuba.’

 

 

Distinguished speakers confirmed for Annual Conference in Washington, DC

Prominent US government officials including Attorney General Loretta Lynch and Secretary of Homeland Security, Jeh Johnson, are due to give keynote addresses and participate in Q and A sessions during the Annual Conference. The LPD, SPPI, BIC and IBAHRI will present showcase sessions throughout the week, culminating in the Rule of Law day.

The LPD showcase is entitled ‘New corporate gladiators – leaders of multinational business in a highly regulated environment’. America’s most respected senior executives and high profile regulatory officials will engage in discussion on risk management in the complex web of interacting rules across borders, on the scope of influence in the regulatory process and on how to manage a crisis situation. Determining the importance and scope of action of legal counsel, both internal and external, will be at the centre of the session. US Securities and Exchange Commission Chair, Mary Jo White, will speak at the LPD lunch.

This year’s SPPI showcase is especially topical and particularly apt for the jurisdiction in which the conference is being held. It will look at America’s long arm of justice and what it means to the world, discussing the legal theories on which the US seeks to base its extraterritorial jurisdiction, and considering whether they can be justified. Leading speakers drawn from across the globe will provide their perspectives, observations and personal experiences.

In addition, distinguished guests share informed opinions and provide insight on key issues facing our world today at special events held during the lunch break, complementing the Conference’s programme of 200 working sessions.

In addition, the ‘Conversation with...’, sessions are open to all delegates and scheduled to begin at 1315. These events do not require any additional fees or advance booking.

Monday: General Colin L Powell, USA (ret), US Secretary of State (2001–2005)

For more than 50 years, General Colin L Powell, USA (ret) has devoted his life to public service in the US. He served in the US Army for 35 years, rising to the rank of four-star general, and has held senior military and diplomatic positions across four presidential administrations. Posts held include President Reagan’s National Security Advisor (1987–1989) and Chairman of the Joint Chiefs of Staff from 1989–1993 for both President George H W Bush and President Bill Clinton. Under President George W Bush, General Powell was appointed the 65th Secretary of State (2001–2005), an appointment unanimously confirmed by the US Senate. In this role, he led the State Department in major efforts to address and solve regional and civil conflicts.

Tuesday: Robert S Mueller, III, Director, Federal Bureau of Investigation (2001–2013) Robert S Mueller, III served as the sixth Director of the FBI, the US domestic intelligence and security service (with both intelligence and law enforcement responsibilities), from 2001–2013. He was nominated by President George W Bush and was sworn in as Director on 4 September 2001, a week before 9/11. His ten-year term was extended at the request of President Barack Obama and pursuant to legislation passed by Congress. Earlier in his career, Mueller held positions as Assistant US Attorney, where he investigated and prosecuted major financial fraud, terrorist and public corruption cases, as well as narcotics conspiracies and international money launderers, and Chief of the US Department of Justice Criminal Division, overseeing the John Gotti mobster prosecution among others.

Thursday: David M Crane, Founding Chief Prosecutor of the Special Court for Sierra Leone (2002–2005); Justice Richard Goldstone, Former Chief Prosecutor of the International Criminal Tribunal for Rwanda and the Former Yugoslavia (1994–1996); Diane Orentlicher, Deputy, Office for War Crimes Issues, US Department of State (2009–2011); Ambassador David Scheffer, US Ambassador at Large for War Crimes Issues (1997–2001); United Nations Secretary-General’s Special Expert on UN Assistance to the Khmer Rouge Trials; Jane Stromseth, Former Director for Multilateral and Humanitarian Affairs at the National Security Council and Deputy, Office for War Crimes Issues, US Department of State (2012–2015); David Tolbert, Deputy Chief Prosecutor of the International Criminal Tribunal for the former Yugoslavia (2004–2008); former Registrar of the Special Tribunal for Lebanon and Special Expert to the UN Secretary-General on the Khmer
Rouge Trials.

 

 

Registration now open for IBA Annual Conference, Washington, DC, 18–23 September 2016

The IBA Annual Conference continues to be the premier opportunity for the world’s leading legal professionals to meet, share experience, develop business and learn from each other. This year, the Conference is expected to draw a record number of participants, exceeding 6,000 delegates.

Washington, DC is not only the seat of the US federal government but also an important centre for international organisations and is home to the International Monetary Fund and the World Bank. The political centre of the US, Washington, DC is home to some spectacular museums and iconic monuments clustered around the National Mall.

For the first time in the event’s history, the IBA President, David W Rivkin will be hosting a series of keynote addresses by, and interviews with, prominent government officials. These will take place before the morning committee sessions, offering a unique opportunity to hear directly about the most important issues of the day.

Full preliminary programme and registration details can be found on the Washington, DC 2016 website at www.ibanet.org/Conferences/Washington2016.aspx.

 

Microsoft litigation head says ‘law today lags behind’ technology

David Howard,  corporate vice-president and deputy general counsel for litigation at Microsoft talks to Ruth Green about the legal and compliance risks posed by the cloud, defending privacy rights, and the need for
up-to-date laws for the internet age.

Ruth Green: After working as a private practice lawyer for most of your career, you left Dechert in 2010 to become head of litigation at Microsoft. What attracted you to the role?

David Howard: Microsoft is a unique company and I saw being the corporation’s head of litigation as a unique opportunity. Every day, I get to grapple with hard, important and cutting-edge issues in an industry that is changing the world.

RG: What is the size and structure of your team and what are the main legal issues keeping you busy?

DH: I oversee the Litigation, Competition & Compliance Group, which manages all of Microsoft’s litigation, antitrust and legal compliance matters. My team comprises 74 professionals in North America, Europe, the Middle East and Asia. We are part of Microsoft’s Corporate, External, and Legal Affairs group, which consists of 1,300 business, legal and corporate affairs professionals working in 55 countries. On the litigation side, we handle everything from patent litigation to class action, commercial, antitrust and employment litigation.

RG: Are there any litigation trends that you’re seeing at the moment? How are these affecting your workload?

DH: The law today lags behind the technologies that are part of our daily lives. We’ve brought a number of challenges in court to stand up for our customers’ rights and vindicate fundamental values. New technologies are making it easier than ever for information to move around the globe, fuelling a growing conflict over whose laws apply to information and how we protect people’s rights. Without some global agreement on access to data, we’ll see more and more legal conflicts over whose laws apply to people’s data.

“ Without some global agreement on access to data, we’ll see more and more legal conflicts over whose laws apply to people’s data

RG: Microsoft is currently challenging a US Government search warrant to access a customer’s emails stored in a data centre in Ireland. Why does Microsoft feel so strongly about this?

DH: We’re challenging this search warrant for two principal reasons. First, the US Government is using a 1986 law – established before anyone envisioned the phenomenon of cloud computing – to justify its position that a search warrant served in the US allows it to access the most personal information of non-US citizens stored outside the country.

We believe Congress needs to modernise this law, but in the meantime it’s clear that Congress didn’t intend for it to have extraterritorial reach. The government’s protection ignores the laws of other countries and the rights of other countries’ citizens, and has created a lot of tension between the US and its allies.

Second, the government’s position in this case is based on its view that a customer’s private emails take on a different character merely because they entrust them to Microsoft to store in the cloud. We believe that documents stored in the cloud deserve the same protection as all personal papers, whether stored in your desk, your bank’s safety deposit box or on the hard drive of your computer.

RG: What additional legal and compliance risks and challenges has the cloud presented for the technology and computer software industries?

DH: More than ever, the internet is not some place in distant cyberspace, it is a place that defines what happens in the real world. The cloud brings people closer together, but borders still matter. There is no national security without cyber security, and that is driving many countries to take action. Some countries, for instance, are adopting laws requiring data residency. Success will come to those who can figure out how to navigate these changes. Key to all of this is building trust. For people and organisations to feel safe, they have to be able to use technology they can trust.

That’s why we grounded our cloud business in a set of principled commitments. We will keep our customers’ data secure; ensure their data is kept private and under their control; manage their data in accordance with local laws; and be transparent in our operations so that people know what we’re doing. We back these cloud commitments with our legal resources as well

This is an abridged version of an interview that appeared in the March 2016 issue of In-House Perspective, the online magazine of the IBA Corporate Counsel Forum. To read the full interview, visit tinyurl.com/IHPDavidHoward.

 

The US Government search warrant – at a glance

  • In 2013, the US Department of Justice (DoJ) served Microsoft with a subpoena and a search warrant for emails from a customer’s Hotmail accounts, which are being held in one of the company’s data centres in Ireland. The DoJ said it required the emails as part of a federal investigation into drug-trafficking.
  • The case centres on the 1986 Electronic Communications Privacy Act which, according to the DoJ, gives the US Government the legal authority to use a search warrant to access data held outside the US.
  • Microsoft is challenging the search warrant, arguing that data stored overseas cannot be subjected to US search warrants and that the emails located in Ireland are protected by Irish and European privacy laws.
  • In July 2014, a lower court judge in the US ruled in favour of the US Government and said Microsoft must comply with the warrant. The tech company argues that a US judge has no authority to issue a warrant for information stored abroad and appealed to the US Court of Appeals, filing its first brief with the Second Circuit Court of Appeals in December 2014.
  • The Irish Government and numerous technology and media companies have filed amicus briefs in support of
  • Microsoft’s position.

 

International Arbitration Day in Shanghai strengthens IBA presence in China with SHIAC support

As part of its growing relationship with China, the IBAhosted its flagship arbitration event in Shanghai on
4 March 2016, with support from the Shanghai International Economic and Trade Arbitration Commission (SHIAC). The IBA 19th International Arbitration Day attracted over 500 of the world’s leading arbitration lawyers, reflecting both the prominence of China in the global legal and business communities, and the importance of arbitration to doing business in China.

Delegates were addressed by IBA President David W Rivkin. National and international influential speakers from the field of arbitration shared their expertise with an audience of leading lawyers, justices and professors, following opening remarks by Anne Véronique Schlaepfer, Co-Chair of the IBA Arbitration Committee, and Jianrong Yang, Chairman of SHIAC.

Ahead of event, the IBA President took the opportunity to discuss future activities of the IBA in China, and the importance of the development of links between its legal community and the rest of the world. Rivkin held meetings with Dacheng Zhao, Vice Minister of Justice, and representatives of the Shanghai Municipal People’s Government; Shanghai Bureau of Justice; All China Lawyers Association; Beijing Bar Association; Shanghai Bar Association, China Council for the Promotion of International Trade; China International Economic & Trade Arbitration Committee; and the Beijing Arbitration Commission.

 

 

IBA Women Business Lawyers Initiative, Beirut

On 3 March 2016, IBA in partnership with the Arab International Women’s Forum (AIWF) and the Beirut Bar Association (BBA) held a Women Business Lawyers (WBL) Initiative event in Beirut, Lebanon.

The WBL event focused on four topics of interest, not just to women lawyers in Beirut but beyond. The topics included: national to international practice – building bridges and connections within the region and internationally; international bodies of arbitration in international commercial contracts; lawyers and anti-corruption from a national level and international perspective; and initiating new legal practices – challenges, tribulations and rewards.

Panellists included both Lebanese and international lawyers and academics, as well as the current Director General of the Lebanese Ministry of Justice. Each panellist made significant contributions to their topic and generated considerable discussion.

 

 

International Seminar on Corruption, Recife

The Legal Policy & Research Unit recently presented at the International Association of Judges (IAJ) International Seminar in Recife, Brazil the focus of which was corruption and its relation to the rule of law. The seminar was hosted by the Pernambuco Regional Electoral Court, in collaboration with the IAJ and the Pernambuco Judicial School of the Electoral Court.

IAJ members have provided input to the current IBA project on improving integrity in judicial systems by combating judicial corruption. This project aims to identify those corruption risks that affect judicial systems and understand the role of the various professionals who operate within judicial systems.

Read more about this event on the Association’s website at tinyurl.com/IBARecife

 

 

Brazil’s first F1 World Champion, Emerson ‘Emmo’ Fittipaldi, addresses conference

An estimated 650 delegates from 35 countries gathered in Rio de Janeiro, Brazil, for the IBA Biennial Latin American Regional Forum Conference on 9–11 March. The theme of the event was finding and maximising business-associated opportunities in Latin America, while avoiding the pitfalls.

The conference’s keynote address was given by Emerson ‘Emmo’ Fittipaldi, one of Brazil’s most successful Formula One drivers. He became the first Brazilian F1 World Champion in 1972, and won the title again two years later. Fittipaldi later went on to pursue a career with the American Championship Auto Racing Teams (CART) Indy-Car series in 1984, winning the title in 1989 and the Indy 500 twice in 1989 and in 1993.

Following opening remarks by the Co-Chairs of the IBA Latin American Regional Forum, Ricardo C Veirano of Veirano Advogados, São Paulo, and Carlos Dominguez of Hoet Pelaez Castillo & Duque, Caracas, influential speakers from Brazil, Latin American region and further afield shared their expertise with an audience of the region’s most prominent lawyers. Delegates were also addressed by IBA President, David W Rivkin in a video message.
The video can be viewed at ibanet.org.  

 

 

Terrorist attacks in Brussels, Belgium

The loss of so many innocent lives and awful casualties in the terrorist attacks in Brussels on 22 March has touched us deeply. The IBA sends this message of support and solidarity, knowing that the people of Belgium share the essential values of justice, freedom and tolerance on which our Association was founded.