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IBA Covid-19 Legal Policy Task Force releases report on optimising pandemic management

Tuesday 26 October 2021

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The International Bar Association (IBA) Covid-19 Legal Policy Task Force has released a report detailing the pandemic’s impact in key legal areas and making concrete actionable recommendations to improve pandemic management in the future. The recommendations will be presented during the Presidential Showcase, part of the IBA Global Showcase, on Wednesday 27 October, 2021 at 14:00 BST.

The IBA Covid-19 Task Force examined the impact of the pandemic on international legal systems, recognised the successes and failings of those systems in dealing with the outbreak and made practical recommendations for reforming existing laws or promulgating new ones to improve the global response to pandemics.

The Task Force is co-chaired by Almudena Arpón de Mendívil, IBA Vice President and Partner at Gómez-Acebo & Pombo in Madrid, Spain; the project’s Initiator Harry Rubin, Partner and Chair, Technology and IP Transactions, Kramer Levin in New York, United States and former Chair of the IBA Technology Section; and Peter Bartlett, Chair, IBA Legal Practice Division and Partner at MinterEllison in Melbourne, Australia. Task Force members are comprised of the Co-Chairs of key IBA Committees with legal disciplines and expertise particularly salient to COVID-19.

Arpón de Mendívil stated, ‘The pandemic has laid bare the disparity between disparate legal regimes. Although some are proving effective, others are sorely inadequate. At a time when more than five million people across the world have died from COVID-19, our new report goes beyond politics and makes suggestions to encourage the world’s policymakers to join forces to manage current pandemics and avert future ones. Undoubtedly, as with many things in life, at the centre of a global response, is law.’

Rubin noted, ‘COVID-19 is the most pernicious global catastrophe since World War II. Pandemics must be treated for what they are: border-defying existential global threats of the highest order. As such, they require a globally coordinated collaborative legal policy effort. The focus of the report is the urgent need to enhance international communication, cooperation and collaboration through legal policy reform to optimise pandemic management and protect populations.’

Bartlett added, ‘The long-term goal of the international community must be a global pandemic treaty. In the meantime, meaningful improvements to existing international regimes in specific areas will optimise the current effort and help to control the impact of future pandemics.’

Ahead of the Task Force’s goal of reaching an international pandemic treaty, the group suggests existing regimes be improved, and a multilateral agreement pursued in distinct areas where a global consensus is more likely to be achieved quickly, including:

  • Faster scientific reporting of pandemic outbreaks without political interference, enabling the investigation of pandemic causes and enactment of laws averting their recurrence;
  • Harmonisation of border controls, travel, airport entries, customs, import-export rules, and transportation, including, establishment of an international protocol for advance communication of border closures;
  • Harmonisation of laws regulating therapeutics and vaccines for fast track approval and reciprocal international recognition of national approvals and registrations; and
  • Establishment of a pandemic authority in each country (acting on scientific evidence), regulating the communication between countries, strengthening the transfer of knowledge, isolated from political interference, and reviewing the role of the World Health Organization (WHO).

Furthermore, the Task Force identified key areas implicated by the pandemic; examined the consequences and results of the applicable laws; looked at the implications of the applicable laws for international coordination and collaboration; identified the national laws that worked in response to the pandemic; and shone a light on the laws that impeded the national response to COVID-19.

Specific areas identified, along with a selection of the Task Force’s key recommendations are listed below:

Healthcare and Life Sciences:

  • Simplify approval for therapeutics, diagnostics, tests, treatments, and vaccines through expedited emergency regulatory clearance and reciprocal international recognition of approvals; and
  • Legally authorise international exchange of anonymised/de-identified digital health data and telemedicine for pandemic tests and vaccines.

Communications:

  • Relax individual consent requirements to allow for the implementation of contact tracing; and
  • Store contract tracing data with an independent authority solely accessible by national healthcare authorities for pandemic purposes to limit unlawful use and dissemination of data.

Intellectual Property and Entertainment:

  • Make medical treatments globally accessible; and
  • Thoughtfully apply compulsory licences of patents in pandemics, allowing the global community access to vaccines and other medical products.

Employment and Industrial Relations:

  • Establish international principles for mandatory testing and vaccinations provided vaccines have been made globally available; and
  • Define the legal status for the international remote worker and adopt global minimum social security safeguards.

International Commerce and Distribution:

  • Apply the general principle of good faith to resolve pandemic related disputes and, consistent with good faith obligations, parties should be required to enter into contract renegotiations to mitigate adverse pandemic consequences; and
  • Adopt, for specific trade sectors, force majeure clauses and procedures expressly addressing COVID-19.

Technology:

  • Implement data anonymisation and the minimisation of the use of personally identifiable data to prevent pandemic containment being impeded by data disclosure consent requirements; and
  • Establish strong international principles to protect cyber security, digital space, digital privacy and storage of sensitive information.

Immigration and Nationality:

  • Limit derogation from the principle of free movement of people, enshrined in multilateral treaties and international human rights law, through the use of border closures, travel bans and travel restrictions in health emergencies only if it is (i) proportionate; (ii) evidence-based; and (iii) clearly outweighs social and economic damage; and
  • The WHO should play a leading role in reviewing the use and misuse of travel bans and provide clear guidance on suitable and proportionate measures.

Anti-Trust:

  • Make preventive (mergers) and repressive (investigations) enforcements flexible when companies are struggling to survive pandemics; and
  • Authorities should interpret accordingly anti-competitive conduct in the context of a pandemic.

Anti-Corruption:

  • Ensure globally coordinated anticorruption detection and enforcement efforts are put in place for both governments and the private sector to ensure proper procurement and supply of pandemic essentials.

The Task Force is mindful that its recommendations are designed to be implemented in the industrially developed world by countries in possession of a sophisticated legal framework. Such recommendations may not be suitable for the infrastructure in industrially developing countries. The Task Force will consider the possibility of completing a second phase of its research comprising the views and expertise of legal practitioners from the latter.

ENDS

Notes to the Editor

  1. Click here for a direct download of the PDF of the Executive Recommendations of the IBA Covid-19 Legal Policy Task Force. www.ibanet.org/document?id=IBA-Covid-19-Task-Force-report-recommendations-2021​​​​​​​
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