A conversation with...
The IBA is continuing its popular Annual Conference 'Conversation with' sessions online at Virtually Together, welcoming a number of distinguished guests.
During the second week of the Conference, speakers included Bill Browder, Geoffrey Ma, Chris Patten, David Miliband and Nicola Sturgeon.
Bill Browder was the largest foreign investor in Russia until 2005, when he was declared ‘a threat to national security’ for exposing corruption in Russian state-owned companies.
In 2008, his lawyer, Sergei Magnitsky, testified against Russian state officials involved in large-scale tax fraud and was subsequently arrested – he later died in prison.Browder has since campaigned globally for governments to impose targeted visa bans and asset freezes on human rights abusers and highly corrupt officials.
In this interview with former CNN financial editor Todd Benjamin, Browder reflects on lobbying the Obama administration to introduce what became the US Sergei Magnitsky Accountability Act 2012, and his efforts to replicate this legislation across the EU, the UK and other countries. Browder gives his thoughts not only on working with the Obama administration but also on the Trump administration, and what he hopes and expects from Joe Biden as US President. He gives an insight into the early days of the regime of Vladimir Putin in Russia, and how Putin has developed during his time in power.
On 10 November 2020, The Honourable Chief Justice Geoffrey Ma Tao-li, GBM spoke about the rule of the law, the effects of Covid-19 on court hearings and the importance of an independent judiciary.
Regarding the National Security Law, Ma was clear that courts are not qualified to take sides on political debates and emphasised the fact that cases had not yet been tried under it, but that the new law will be interpreted in ‘the same way’ by the court as other legislation is.
The discussion covered the Basic Law, translations of the National Security Law and the common law legal system in Hong Kong, which is guaranteed until at least 2047.Chief Justice Ma voiced that he could see no reason why it could not continue beyond this date.
Taking questions from the audience, Chief Justice Ma spoke to memorable cases in his career, the application of the rule of law in Hong Kong and the impact of the pandemic on court hearings.
The conversation ended on a forward-looking note, with Ma saying that ‘things are going to change permanently even when we get out of this Covid epidemic’ as court processes are more ‘efficient and therefore time-saving… the push for greater efficiency and for alternative means and greater use of technology is there.’
On 11 November, IBA Executive Director Mark Ellis spoke to Lord Chris Patten, the former UK Minister for the Environment, Chair of the Conservative Party and the last British Governor of Hong Kong. In the first half of the conversation, Lord Patten shared his thoughts on the United States presidential election, lamenting the involvement of lobbyists in judicial appointments and the loss of American leadership, which he believes is ‘indispensable if we want to make the world a better place’.
Turning to the erosion of the rule of law in Hong Kong, Lord Patten highlighted that the key resistance to this erosion by the Chinese Communist Party is coming from Hong Kong’s own people, own youth, and lawyers, who all have very specific ideas about the kind of society they want to live in.
He says of the responsibilities of the international community that ‘it may be that we can’t change China for the time being, but we can certainly stop China changing us. That’s what we must avoid being cowards about. We have to stand up for what we believe in and we have to do it with others who believe in the same things’.
Responding to a question about the US-China trade war instigated by President Trump, he added ‘we do have to avoid taking economic measures which will hurt people in Hong Kong, but try to focus on measures which will make Chinese officials understand there is a price to be paid for autocratic, police state activities’.
On 12 November the Rt Hon David Miliband, President and CEO of humanitarian aid body the International Rescue Committee (IRC), discussed a wealth of topics including the refugee crisis and the future of democracy with former CNN anchor and financial editor, Todd Benjamin.
‘The greatest danger [facing refugees] is from the rise of what I call the age of impunity in the war zones around the world […] the abuse of the rule of law, the discounting of the rule of law, is a significant feature of the conflict environment’, said Miliband.
Miliband highlighted that many fighting the issues of war and peace, which produce refugees, face a ‘fear of disempowerment’, where they do not feel able to make change happen. Discussing other global movements, such as Black Lives Matter, Miliband recognised that ‘the means of connection around the world are greater than ever, but the means for spreading poison and hate are also greater than ever’.
‘It’s a real battle whether the forces of accountability or the forces of impunity win out,’ Miliband said, highlighting that NGOs such as the IRC and IBA have got ‘to mobilise expertise, but also to mobilise the countervailing power to impunity’.
On the future of the world, Miliband stressed the need for a connected international response to the issues of the world today. Calling attention to the nationalism and nativism running strong and the retreat of democratic politics, Miliband then looked to the future and the question of whether the world could become more inclusive over the next ten years. In this he was optimistic – but with a clear sense of urgency. ‘The longer we delay the renovation of the multilateral system, the greater the damage to it’.
A solicitor by background, Rt Hon Nicola Sturgeon became leader of the Scottish National Party in 2014 and was sworn in as First Minister later that year, becoming the first female First Minister and the first female leader of any devolved UK administration. Sturgeon is currently MSP for Glasgow Southside.
In the wake of the US presidential election result this month, Sturgeon spoke of how we might react to divisiveness within countries and how we might heal after a particularly tumultuous several years. She highlighted the importance of the conduct of leaders, and how politicians have a choice between stoking division or recognising the importance of divisive issues and trying to find common ground.
She further spoke of the damage to multilateralism after four years of the Trump administration and how it might be repaired by a Biden administration in the United States.
Moving to topics closer to home, Sturgeon discussed the possibility of a second referendum on Scottish independence – specifically in the context of Brexit, which the people of Scotland voted heavily against – and her views on whether this referendum might eventually come to pass, despite the current position of the UK government.
2-27 November 2020
Register onlineIBA 2020 – Virtually Together Weekly News
Week 1: 2-6 November 2020
Showcase (SPPI): Looking out of the window
The week’s showcases began with the SPPI session ‘Looking out the window, not into the mirror’. Here panellists examined the legal profession’s need, especially in a modern world where disruption manifests itself everywhere, to truly innovate and develop outside of comfort zones, drawing on lessons from other industries rather than solely looking for solutions from within the profession. As session Co-Chair Stephen Revell of Freshfields Bruckhaus Deringer put it in his opening remarks, ‘we need to get out more’.
Revell noted that despite sometimes being slow in general to adapt, the legal profession as a whole had proven itself capable of doing so when forced to in response to the Covid-19 crisis, but that issues were around before Covid and ‘run deeper’.
In keeping with the theme, the panel was drawn from a variety of industries, including advertising, accountancy, management consultancy and the media (in addition to a few lawyers of course!), and co-chaired by Philip Rodney of Rimalower Consulting and the Senior Lawyers Advisory Board.
Todd Babbitz, a leader of consultancy McKinsey’s Legal Services Practice, noted a ‘laser-like focus on client impact’, the importance of staying attuned to clients’ changing needs and adapting to meet them: ‘We've really shifted a lot of focus, from just telling our clients what they should be doing to being true impact partners and helping to create change on the ground.’
Indeed, meaningful engagement with clients was a major recurring theme for many panellists during the session. Melissa Davis, from PR firm MD Communications, focused on the importance of authenticity and consistency, urging the forming and nurturing of honest relationships with clients and appreciating that they are different and may need different approaches. She urged proactive communications with clients and actually listening to what they have to say.
Babbitz also stressed the importance of employees and the need to invest in attracting and retaining high-calibre individuals. Later in the session, Maria-Pia Hope, Managing Partner of Vinge in Stockholm, also focused on employees, discussing an initiative by which her firm had increased engagement with young associates, creating a dialogue within the company which had given a platform to fresh perspectives.
Guenther Debrauz, partner of PWC in Zurich and formerly the legal tech leader for the firm, talked about embracing technology and the benefits it could bring in improving efficiency.
The first of the ‘non-lawyers’ to speak, James Hayhurst, former Head of Brand Strategy and Communications at Unilever with 15 years’ experience prior to that in ad agencies, highlighted the need to embrace change as inevitable: ‘It’s important to change and to be prepared to be disrupted’, also echoing comments on building relationships with clients and the need for clients to trust their advisors.
Rosalind McInnes of BBC Scotland agreed that while stressful, change had allowed her to develop: ‘I have learned not to be afraid of having to move very fast and to think on my feet. And that’s been a very useful lesson in coping with change’. Contrary to the thrust of the session, she pointed to areas where it was good if law itself was not changing in conjunction with, in her world, the media – for example, insisting on evidence and the burden of proof.
The lively session provided much food for thought for the legal profession in considering how to navigate the years ahead.
Showcase (IBA): Reinventing global legal education
The IBA Showcase session ‘Reinventing global legal education to address the ongoing transformation of the legal professions: a blueprint for change’, took place on Tuesday 10 November, and addressed the key trends, opportunities and challenges facing legal educators.
The Showcase session was led by the IBA Commission on the Future of Legal Services and Law Schools Global League (LSGL), and was chaired by former IBA President Fernando Pelaez-Pier and Soledad Atienza, Dean of IE Law School. The session also featured Amnon Lehavi, Co-President of LSGL, Michele DeStefano, founder of LawWithoutWalls, and current IBA SPPI Chair Sarah Hutchinson.
The session discussed keys findings found in the upcoming report Developing a Blueprint for Global Legal Education. Research for the Blueprint, undertaken by the IBA and LSGL, with coordination by the IE Law School, identified four notable challenges, including globalisation/ internationalisation, technology, regulation and diversity/ inclusion – affordability and access to legal education among students was also noted as a key hurdle. The Blueprint identifies and evaluates existing and proposed responses that selected schools in various regions are taking, and aims to offer inspiration for educators and practitioners alike.
The research was conducted by eight researchers, with the assistance of four supporters from seven regions around the world. The researchers analysed more than 200 articles of relevant literature; scrutinised 420 school websites; received over 300 responses to online surveys; and held interviews with more than 60 law schools and bar associations across the globe.
IBA President Horacio Bernardes Neto opened the session by highlighting the impact of the Covid-19 pandemic on the legal profession and the need, now more than ever, to address legal education. A lively and insightful discussion followed, analysing the key challenges unearthed by the report, as well as each panellist offering their biggest wish for global legal education, including Sarah’s wish for the IBA to become a thought-centre for global legal education and Amnon’s wish that legal aid clinics are prioritised post Covid-19, as a necessity for legal educators in creating well-rounded lawyers.
The need for change was pervasive throughout the session, especially in light of Covid-19 and the emergence of technology as a lifeline.
‘We are the profession that are less developed in terms of technology’ said the IBA President, ‘We have to talk about that and have to talk about how the profession should change, and the study of it should change.’
Showcase (LPD): Year of the whistleblower
Legal Practice Division (LPD) Showcase session ‘LPD Showcase: 2020 - the year of the whistleblower’ took place on 12 November, led by the IBA’s Anti-Corruption Committee LPD, and joined by the IBA’s Legal Policy & Research Unit (LPRU).
The session brought together experts from around the world to discuss the increase in legislative and regulatory activity relating to whistleblower protections, especially highlighted by the Covid-19 pandemic.
It was also an opportunity for the LPRU and Government Accountability Project to launch the upcoming landmark report on whistleblower protection laws, looking at jurisprudence in every country to identify successes and shortcomings, as well as offering guidance for policy-makers and regulators.
Peter Bartlett, incoming Chair of the LPD, provided the introduction for the session. He referred to the Chinese doctor who blew the whistle on Covid-19 at the start of the year, and highlighted how there has never been a time when a stronger rule of law and the independence of the judiciary, and legal protection for whistleblowers, were needed.
The panel also included Tom Devine, Legal Director at Government Accountability Project; Mary Inman, partner at Constantine Cannon; Jitka Logesová, lawyer at Wolf Theiss and Co-Chair of the IBA Anti-Corruption Committee and Hyojun An, partner at Bae, Kim & Lee. The panellists spoke about the topic of whistleblowing in their various jurisdictions around the world, and forecasts for the trend of whistleblowing and whistleblower rights.
Kieran Pender of the LPRU spoke about the upcoming report on whistleblower protection litigation, and discussed the key findings of the research, which began in 2018. The session elaborated on the global legal revolution in whistleblower rights, although the erratic quality of these laws means that the stated vision of these nations is not being achieved. The report, which is due to be published next month, not only outlines the quality of these rights bit also the cases of whistleblower retaliation, to see how effective the rules are working in practice.
The session discussed the recommendations outlined in the upcoming report, such as the removal of economic barriers for whistleblowers who are looking to challenge their rights, and the regular periodic review of whistleblower laws in order to continuously improve them. Samantha Feinstein, Staff Attorney and Deputy Director of the International Program at Government Accountability Project, also emphasised the importance of implementing public education and training, to teach people about their rights and what laws exist and what they protect, and to educate people about biases towards whistleblowers and outline preventative measures to stop retaliation from being used against whistleblowers in the first place.
Committee sessions
The Conference continued into its second week with a plethora of committee sessions being held.
On Monday 9 November, a panel of experts provided tips to lawyers on setting themselves apart from the competition in an increasingly challenging recruitment environment, in a session entitled ‘Managing your international legal career.’
Another session on the same day – ‘5 negotiation strategies that will get you more and change your life’ – aimed to provide lawyers with advice on negotiating in an array of situations. The session was led by Columbia Law School Professor Alexandra Carter.
On 10 November, meanwhile, ‘Water is a human right - what are we doing about it?’ examined the actions governments and companies can and are obligated to take to provide for peoples’ access to a supply of safe, clean water. From water to insurance, a particularly timely session also on the 10 November assessed the emerging insurance implications of pandemics, with the panel bringing perspectives from across the globe. The session was titled ‘Pandemics: Property/Business Interruption Insurance and the Global COVID-19 Outbreak.’
On 11 November, members of the IBA’s Legal Policy and Research Unit chaired the session ‘Ending modern slavery: how the legal profession can meet the challenge.’ The session focused on the legal gaps and possible solutions to the issues, and featured a short awareness-raising film. In ‘How the world is changing - foreign direct investment in the Americas,’ the speakers explored the current regulatory environment, with a key focus on recent developments and on the reasons why certain transactions in the region have been successful – and others have not.
Thursday 12 November featured general counsel looking at two of the biggest topics of 2020: the Covid-19 pandemic and the global recession that has resulted from it. In ‘GCs on Covid-19’, the diverse panel explored the topics at both a global and micro level.
As part of the IBA 2020 – Virtually Together conference’s line-up for tax lawyers, the session ‘Current state of play of private equity structures and the use of partnerships’ provided a comprehensive review of the state of play for the US check-the-box rules in relation to both the EU Anti-Tax Avoidance Directive and the Organisation for Economic Cooperation and Development’s Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting.
As the week drew to a close, a session on ‘Mining for damages: why, when and how to determine damages for pre-operational mining projects’ examined a recent trend of international arbitration tribunals awarding damages to development projects that had not yet become operational mines. In ‘The impact of Covid-19 on the restructuring of private debt’, the panel tracked the pandemic’s implications for the treatment of distressed private corporate debt from a creditor’s perspective.
A conversation with...
The IBA is continuing its popular Annual Conference 'Conversation with' sessions online at Virtually Together, welcoming a number of distinguished guests.
During the second week of the Conference, speakers included Bill Browder, Geoffrey Ma, Chris Patten, David Miliband and Nicola Sturgeon.
Bill Browder was the largest foreign investor in Russia until 2005, when he was declared ‘a threat to national security’ for exposing corruption in Russian state-owned companies.
In 2008, his lawyer, Sergei Magnitsky, testified against Russian state officials involved in large-scale tax fraud and was subsequently arrested – he later died in prison.Browder has since campaigned globally for governments to impose targeted visa bans and asset freezes on human rights abusers and highly corrupt officials.
In this interview with former CNN financial editor Todd Benjamin, Browder reflects on lobbying the Obama administration to introduce what became the US Sergei Magnitsky Accountability Act 2012, and his efforts to replicate this legislation across the EU, the UK and other countries. Browder gives his thoughts not only on working with the Obama administration but also on the Trump administration, and what he hopes and expects from Joe Biden as US President. He gives an insight into the early days of the regime of Vladimir Putin in Russia, and how Putin has developed during his time in power.
On 10 November 2020, The Honourable Chief Justice Geoffrey Ma Tao-li, GBM spoke about the rule of the law, the effects of Covid-19 on court hearings and the importance of an independent judiciary.
Regarding the National Security Law, Ma was clear that courts are not qualified to take sides on political debates and emphasised the fact that cases had not yet been tried under it, but that the new law will be interpreted in ‘the same way’ by the court as other legislation is.
The discussion covered the Basic Law, translations of the National Security Law and the common law legal system in Hong Kong, which is guaranteed until at least 2047.Chief Justice Ma voiced that he could see no reason why it could not continue beyond this date.
Taking questions from the audience, Chief Justice Ma spoke to memorable cases in his career, the application of the rule of law in Hong Kong and the impact of the pandemic on court hearings.
The conversation ended on a forward-looking note, with Ma saying that ‘things are going to change permanently even when we get out of this Covid epidemic’ as court processes are more ‘efficient and therefore time-saving… the push for greater efficiency and for alternative means and greater use of technology is there.’
On 11 November, IBA Executive Director Mark Ellis spoke to Lord Chris Patten, the former UK Minister for the Environment, Chair of the Conservative Party and the last British Governor of Hong Kong. In the first half of the conversation, Lord Patten shared his thoughts on the United States presidential election, lamenting the involvement of lobbyists in judicial appointments and the loss of American leadership, which he believes is ‘indispensable if we want to make the world a better place’.
Turning to the erosion of the rule of law in Hong Kong, Lord Patten highlighted that the key resistance to this erosion by the Chinese Communist Party is coming from Hong Kong’s own people, own youth, and lawyers, who all have very specific ideas about the kind of society they want to live in.
He says of the responsibilities of the international community that ‘it may be that we can’t change China for the time being, but we can certainly stop China changing us. That’s what we must avoid being cowards about. We have to stand up for what we believe in and we have to do it with others who believe in the same things’.
Responding to a question about the US-China trade war instigated by President Trump, he added ‘we do have to avoid taking economic measures which will hurt people in Hong Kong, but try to focus on measures which will make Chinese officials understand there is a price to be paid for autocratic, police state activities’.
On 12 November the Rt Hon David Miliband, President and CEO of humanitarian aid body the International Rescue Committee (IRC), discussed a wealth of topics including the refugee crisis and the future of democracy with former CNN anchor and financial editor, Todd Benjamin.
‘The greatest danger [facing refugees] is from the rise of what I call the age of impunity in the war zones around the world […] the abuse of the rule of law, the discounting of the rule of law, is a significant feature of the conflict environment’, said Miliband.
Miliband highlighted that many fighting the issues of war and peace, which produce refugees, face a ‘fear of disempowerment’, where they do not feel able to make change happen. Discussing other global movements, such as Black Lives Matter, Miliband recognised that ‘the means of connection around the world are greater than ever, but the means for spreading poison and hate are also greater than ever’.
‘It’s a real battle whether the forces of accountability or the forces of impunity win out,’ Miliband said, highlighting that NGOs such as the IRC and IBA have got ‘to mobilise expertise, but also to mobilise the countervailing power to impunity’.
On the future of the world, Miliband stressed the need for a connected international response to the issues of the world today. Calling attention to the nationalism and nativism running strong and the retreat of democratic politics, Miliband then looked to the future and the question of whether the world could become more inclusive over the next ten years. In this he was optimistic – but with a clear sense of urgency. ‘The longer we delay the renovation of the multilateral system, the greater the damage to it’.
A solicitor by background, Rt Hon Nicola Sturgeon became leader of the Scottish National Party in 2014 and was sworn in as First Minister later that year, becoming the first female First Minister and the first female leader of any devolved UK administration. Sturgeon is currently MSP for Glasgow Southside.
In the wake of the US presidential election result this month, Sturgeon spoke of how we might react to divisiveness within countries and how we might heal after a particularly tumultuous several years. She highlighted the importance of the conduct of leaders, and how politicians have a choice between stoking division or recognising the importance of divisive issues and trying to find common ground.
She further spoke of the damage to multilateralism after four years of the Trump administration and how it might be repaired by a Biden administration in the United States.
Moving to topics closer to home, Sturgeon discussed the possibility of a second referendum on Scottish independence – specifically in the context of Brexit, which the people of Scotland voted heavily against – and her views on whether this referendum might eventually come to pass, despite the current position of the UK government.
SPPI Awards
The IBA Section on Public and Professional Interest (SPPI) presented its annual awards on 9 November, as part of the IBA 2020 – Virtually Together conference. The awards were sponsored by LexisNexis.
The IBA President, Horacio Bernardes Neto, welcomed viewers. Ian McDougall, Executive Vice President and General Counsel for LexisNexis, then gave an introduction in which he highlighted the importance of the rule of law, particularly in the present Covid-19 crisis, and reminded the audience that when the crisis passes, it’s “crucial that the rule of law remain strong in its wake”.
Marco Monaco Sorge, Co-Chair of the IBA Young Lawyers’ Committee, presented the first award of the ceremony – the IBA Annual Outstanding Young Lawyer Award (an award in recognition of William Reece Smith Jr).
The recipient was Daye Gang for her work, dedication and efforts in the emerging field of restorative justice for victims of sexual and family violence, as well as her pursuit for accountability of perpetrators of crimes committed in the Democratic People’s Republic of Korea (DPRK).
In her speech Gang discussed the background to her work on the Korean peninsula. She highlighted, for example, that the gender pay gap in South Korea is the highest among Organisation for Economic Cooperation and Development members, and meanwhile, that the DPRK does not even a conceptual framework about violence enacted through gender.
Federica D’Alessandra, Co-Chair of the IBA Human Rights Law Committee, and Baroness Helena Kennedy, Director of the IBA’s Human Rights Institute, presented the IBA Award for Outstanding Contribution by a Legal Practitioner to Human Rights. This year the award was given to Neri Javier Colmenares, a renowned human rights lawyer and activist in the Philippines. Colmenares receives this accolade in respect of his extensive contribution to human rights, and his continuing determination and advocacy, in the face of great adversity.
In accepting the award, Colmenares highlighted the attention currently being paid to the compatibility of human rights with Covid-19 responses worldwide. He suggested that any Covid response that disregards human rights is not the correct path, as it exacerbates the problem rather than providing an appropriate solution.
David Herman Flechner, Co-Chair of the IBA Pro Bono Committee, presented the ceremony’s final award to humanitarian lawyer Ishrat Hasan. Hasan received the award for her dedication to removing barriers limiting access to justice, specifically for poor, disadvantaged and marginalised communities in Bangladesh, as well as her legal battles in relation to the rights of women and children.
Hasan, receiving the award, spoke of the challenges facing women in Bangladesh due to social barriers. Speaking from personal experience, she gave an example by describing the importance of breastfeeding rooms for women in public places, noting that this shouldn’t be seen as a domestic issue, but one having a significant impact on millions of working women.
Closing remarks were made by Sarah Hutchinson, Chair of the SPPI, who thanked all of the entrants to each of the awards, as well as the IBA staff and committees involved.
Pictured L-R: Daye Gang, Neri Javier Colmenares, Ishrat Hasan