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 third week of the Conference, speakers included Kerry Kennedy, David W Rivkin, Mary Robinson, Sternford Moyo and Malik R Dahlan.
On Monday 16 November, the IBA’s Executive Director Dr Mark Ellis spoke to Kerry Kennedy, President of Robert F Kennedy Human Rights. A lawyer and human rights activist, Kennedy’s work has focused on pursuing equal justice, the protection and promotion of basic rights and the preservation of the rule of law. Her current roles include serving on the board of directors of both the US Institute of Peace and Human Rights First.
In a wide-ranging conversation, Kennedy spoke of why she made human rights advocacy her life’s work and her involvement in education programmes, teaching students about human rights and community organising to create change.
She highlighted a number of important rights issues for the US, including the role of police within society and the implications of calls to defund the police; the use of the death penalty; and the need to tackle systemic racism and the failure so far to do so in the US criminal legal system and in the US financial system.
She also discussed the task ahead for US President-Elect Joe Biden in trying to heal divisions domestically, and further in attempting to restore people’s belief in democracy and democratic institutions, as well as placing human rights back at the top of the agenda, at an international level.
David W Rivkin served as the President of the International Bar Association in 2015 and 2016, during which time he led a wide range of projects on business and human rights (BHR), judicial integrity, the independence of the legal profession, climate change and more.
In conversation with legal journalist Angela Bilbow, Rivkin covered many subjects, including in-depth discussion on BHR and the substantial change in the perspective of companies and how they do business. He highlighted a ‘very important transformation of soft law into hard law’, which is taking place, with new legislation being introduced on ‘human rights due diligence, which goes not just to supply chains, but also goes to environmental issues and human rights issues’.
Later, Rivkin praised the response of the international arbitration community to the Covid-19 pandemic. On the technology front, he hoped ‘that we are able to use this technology and conducting virtual hearings to really change the way we conduct international arbitration going forward’, while recognising there is still a need for in-person hearings in many situations.
Looking additionally at the way lawyers serve their clients, Rivkin stressed that ‘clients increasingly want their lawyers to be focusing on broader issues’ and the ‘important role of the lawyer as a wise counsellor’. This holistic approach helps lawyers to provide effective and efficient legal advice.
‘Particularly given the economic demands of the pandemic, the pressures put on companies, I think a lawyer serving his or her clients in that role becomes all the more important’, Rivkin said.
Mary Robinson served as President of Ireland from 1992–1997, and following this, became the UN High Commissioner for Human Rights from 1997–2002. In 2010, she set up the Mary Robinson Foundation – Climate Justice, a centre for thought leadership, education and advocacy on the struggle to secure global justice for those most vulnerable to the impacts of climate change.
In her ‘Conversation with’, Robinson spoke at length about climate justice, answering questions from interviewer Todd Benjamin and a large number from the audience.
She began by explaining the many ‘injustices that make up climate justice’, including how climate change is disproportionately affecting the poorest communities, small island states and indigenous peoples of the world – those least responsible for the crisis.
Sharing some staggering figures, Robinson stated that ‘by 2050, we’re told that something like 200 million people might be displaced by climate change’.
Reacting to the recent US election news, Robinson was pleased that the new administration appears set to reengage with climate issues following four years of the reverse. On the subject of major world powers, she also considered the crucial importance of getting China to commit to and deliver on climate targets.
Referencing the current pandemic, Robinson stated that ‘Covid-19 has brought [climate injustice issues] home like a mirror, because it has exacerbated all the inequalities’. She went on to say that while extremely destructive, Covid-19 has provided an impetus to take a renewed approach to the climate crisis.
Issues of gender equality and empowerment were central during the interview. Robinson stated that female or feminist leadership had proven effective during the Covid-19 crisis – a model of ‘problem-solving that is collaborative, that is non-hierarchical, that is listening to the science of the experts and that is a leadership of service’ – and that such leadership should be applied to address the climate crisis.
The fossil fuel industry and its lobbying power also came under scrutiny from Robinson and she referenced this as a major threat to progress on climate matters and the need to transition away from fossil fuels as swiftly as possible.
To finish the session, Robinson considered the importance of hope in remaining proactive in the face of considerable global issues: ‘The glass doesn't have to be half full. It may only have a little bit in the bottom. Work on that.’
In a ‘Conversation With…’ session on Thursday 19 November, the IBA’s President-Elect, Sternford Moyo, spoke to South African journalist Jane Dutton about his plans for his presidency and about international criminal justice. Moyo highlighted the importance of virtual conferences and noted, ‘We’ve always known that digitalisation was necessary’, but that ‘the pandemic has thrown us into the future’.
He discussed the International Criminal Court at length, including President Trump’s attacks on the Court, which he hopes the incoming Biden administration will address. He emphasised the importance of the legal profession’s independence to protect democracy and the rule of law, and to protect their jurisdiction from extreme nationalism, noting that ‘The Trump incident’ has shown that lawyers in all jurisdictions must remain vigilant. He said, lawyers ‘need to be courageous to state the requirements of the law to their governments’ and ‘maintain their independence so that they can litigate cases that hold their government accountable’, as well as scrutinising the judiciary’s independence.
Finally, he spoke of balancing interests – especially environmental rights, commercial interests, and human rights. Moyo said, ‘You cannot be a good commercial lawyer unless you have an in-depth knowledge of human rights’ and advising clients requires achieving a ‘balance of the interests of investors with the needs of the communities’ affected by mining and other extractive economies.
Professor Dr Malik R Dahlan is a multi-jurisdictional legal practitioner and transnational regulatory lawyer, UN Constitutional Expert and Founding Director of the Qatar Law Forum of Global Leaders in Law. Professor Dahlan’s breadth of knowledge and range of expertise led to an in-depth conversation on international law and more with former CNN anchor, Todd Benjamin.
‘The rule of law has to stand supreme over everything, which I think is inherently a Western value [that] we’re taking for granted globally’, said Professor Dahlan.
Citing ‘disinformation’ as the biggest threat to the rule of law, he recognised that in technology, there is an ‘open space that lacks sovereignty and is borderless’ which requires a multilateral response, possibly through mediation.
‘I think global governance needs to be super soft and decentralised. So ideas of integration will not survive and therefore we need cooperation […] we must reimagine a new global compact that’s more broadly based and extends beyond states,’ he said.
Professor Dahlan also touched on solving big international problems through ‘inter-generational dialogue’. ‘Since the Arab Spring, it has been clear to me that we need to listen and listen proactively to the concerns of young people’, he said. ‘They’re a very intelligent generation […] they’re ultra-realists and they understand the challenges that are coming and therefore tend to have this focus on what will be important in their life rather than being lost on larger themes’.
2-27 November 2020
Register onlineIBA 2020 – Virtually Together Weekly News
Week 3: 16-20 November 2020
IBA Showcase: the rise of impact - a lawyers perspective from a business outlook
The ‘IBA Showcase: the rise of impact – a lawyers perspective from a business outlook’ took place on Tuesday 17 November. The session focused on the rapid growth of impact and environmental, social and corporate governance (ESG) investing, and was chaired by Carolina Zang, of Zang Bergel & Viñes Abogados, and Luis Carlos Rodrigo, of Rodrigo Elias & Medrano Abogados.
The chairs discussed the creation of an IBA task force on the rise of impact and the role of lawyers, which released a paper to coincide with the showcase. The task force’s work takes as a case study a lawyer’s client who has the opportunity to receive a major investment, but the investor has made it clear that the client must meet ESG requirements, and the recommendations the lawyer would then provide.
Following a foreword by the IBA President, Horacio Bernardes Neto, the panel presented their thoughts, moderated by Adriana Castro of BLP.
Gabriel Berger of the School of Business, Universidad de San Andrés – which assisted with the task force’s report – highlighted that the world of investment is changing, with ESG-considered investment having grown by 34 per cent since 2016 and impact investment reaching $239bn in 2019. Juan Cruz Diaz, of the same institution, explained how the proliferation of ESG and impact management standards has created further areas of regulatory and self-regulatory compliance, as well as more stakeholders and new avenues of litigation to be navigated.
Stephen Davis of the Harvard Law School Program on Corporate Governance explained the influence and expectations of younger investors. He noted millennials have two ways to move the market: where they put their money and how they raise their voices on social media. Cliff Prior of GSGII commented that sustainable investing as resilient, given the Covid-19 crisis, and pointed out the role ESG and impact investing can play in healing the damage wrought by the pandemic.
Jonathan Taylor, Director of Legal and Compliance for Latin America at BlackRock, discussed the importance of data in ESG. He talked about how BlackRock will be rolling out products that are given ESG scores. Brian Trelstad of Bridges Fund Management noted that the impact and ESG fields will require tools of innovation to survive. He challenged lawyers to find ways to innovate legal practice to drive positive impact rather than only mitigate the negative impact.
Tensie Whelan of the Center for Sustainable Business spoke about work developing methodologies for corporates to actually track the financial returns on their sustainability investments, because currently they’re not necessarily doing so – companies disclose ESG and financial but not how the two are related.
Bringing the session to a close, Alexei Bonamin of TozziniFreire Advogados noted how sustainable investing is becoming the new normal, and the importance of lawyers in this transition. Almudena Arpón de Mendivil of Gomez Acebo & Pombo highlighted that lawyers have to apply the sustainable model themselves and must ‘walk the talk.’ She remarked that the IBA is the perfect forum to discuss these issues at a global level.
BIC Showcase: the impact of climate change - what every bar association needs to know
The IBA Bar Issues Commission’s (BIC) showcase session focused on what bar associations need to know about the impact of climate change. IBA President Horacio Bernardes Neto opened the session, stating ‘lawyers, bars and law societies have a vital role to play in combatting this unfolding global catastrophe’. Each panellist then gave a presentation, with BIC officers Ken Murphy and Fiona McLeod AO SC moderating.
Elizabeth McLeod, of the Royal Australasian College of Surgeons, highlighted huge potential for a health impact intersection with litigation and noted the impact of climate breakdown on health globally. The World Health Organisation (WHO) deemed air pollution the top threat to health in 2019, with nine in ten people breathing polluted air every day. McLeod pointed to the WHO’s Constitution preamble, which defines health as a state of complete physical, mental and social wellbeing, not merely the absence of disease.
Jorge Vinuales, Harold Samuel Professor of Law at the University of Cambrige, spoke about climate change and investment arbitration. He told the audience that investment disputes with environmental components are on the rise. Looking forward, he predicts regulatory change relating to green industrial packages, increasingly frequent use of environmental clauses, industrial basis changes as a result of transition, and that climate change law ‘will start to bite’, highlighting the Friends of the Earth v Secretary of State (2020) ruling on Heathrow’s third runway.
Jasper Teulings, General Counsel at Greenpeace International, said corporations and investors are increasingly exposed to litigation and liability for their role in fossil fuel extraction and climate change contributions. Such litigation includes: injunctive relief seeking to mitigate impacts; direct claims for damages; and shareholder, consumer and investor claims related to climate risk disclosure and fraud. He noted emerging trends: the convergence of legal concepts; and a rapid conversion of soft law into hard law. The building blocks of these cases, he said, are attribution science and a growing body of evidence linking increases in greenhouse gases to specific impacts. He noted that law firms also face scrutiny from Ivy League universities like Yale, as law students are ranking firms regarding their responsibility in relation to climate change, and declared that all firms have a duty to do no harm.
Matthew Gingell, Chair of the Chancery Lane Project, spoke of a spectrum of legal climate action ranging from activism to climate purposed firms. He focused on climate aligned contracting, where contracts are rewritten to embed climate and environmental obligations, calling this a chance for commercial lawyers to enable solutions in a politically and professionally neutral way. He believes business and capital can move faster than governments, ‘so there’s a real impact opportunity for firms to bridge the gap’ for legislators and take the lead on climate solutions. If the market moves towards a greener climate position then legislators can be more ambitious, he said.
Two audience polls addressed the central question of what bar associations need to know about the impact of climate change, with two-thirds of participants suggesting the answer is: more.
Committee sessions
Committee sessions continued across the third week of the IBA 2020 – Virtually Together conference.
Among those sessions on Monday 16 November was a look at ‘The unique role of Hong Kong as an arbitration and mediation venue for China and the Belt and Road’. The session examined how the ‘One Country, Two Systems’ principle supports the cross-border and international practice of Hong Kong-based lawyers in fields such as finance and dispute resolution, both in Asia and globally.
The session ‘Latest trends emerging in 2020 on diversity in the corporate world’, meanwhile, analysed the challenges that the state of play for corporations worldwide could create for how they approach diversity.
On the Tuesday 17 November, a session entitled ‘Cops and robbers: privacy and security by design’ explored how different layers of communications services, from networks to apps, must now ‘bake in’ compliance with privacy and security laws and regulations.
Continuing the technology theme on 17 November, ‘Artificial intelligence, digital innovation and access to justice’ considered the benefits of innovation within legal frameworks, including the potential to increase access to justice by providing additional and alternative methods of participation.
On Wednesday 18 November, ‘The future of agriculture in Africa: from cutlasses to drones’ focused on the addition of technology – from blockchain to robotics – into the entire value chain of the agricultural sector in Africa. From drones to planes, ‘Hot topics in international aircraft leasing and finance’ brought together an international panel to discuss the current issues facing aircraft, aircraft engine leasing and financing transactions and methods for enforcing the rights of the parties to those transactions.
Highlights on Thursday 19 November included ‘UN guiding principles on business and human rights: the next decade of action,’ which looked at the progress made and the challenges ahead for the UN’s guiding principles in this area. A session on ‘Preservation of legal privilege in international litigation’ explored the uncertainties and pitfalls of maintaining legal privilege in a world that’s increasingly borderless.
Finishing the week, sessions on 20 November included ‘New trends in insolvency alternative dispute resolution (ADR)’, which presented a discussion of how insolvency proceedings and restructuring have made use and can further utilise the different ADR methods available. In ‘The United States Jones Act and Cabotage Laws in other principal maritime jurisdictions: challenges, solutions and the future,’ the panel considered how competition, energy transportation concerns and other factors have brought historic cabotage laws under scrutiny.
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 third week of the Conference, speakers included Kerry Kennedy, David W Rivkin, Mary Robinson, Sternford Moyo and Malik R Dahlan.
On Monday 16 November, the IBA’s Executive Director Dr Mark Ellis spoke to Kerry Kennedy, President of Robert F Kennedy Human Rights. A lawyer and human rights activist, Kennedy’s work has focused on pursuing equal justice, the protection and promotion of basic rights and the preservation of the rule of law. Her current roles include serving on the board of directors of both the US Institute of Peace and Human Rights First.
In a wide-ranging conversation, Kennedy spoke of why she made human rights advocacy her life’s work and her involvement in education programmes, teaching students about human rights and community organising to create change.
She highlighted a number of important rights issues for the US, including the role of police within society and the implications of calls to defund the police; the use of the death penalty; and the need to tackle systemic racism and the failure so far to do so in the US criminal legal system and in the US financial system.
She also discussed the task ahead for US President-Elect Joe Biden in trying to heal divisions domestically, and further in attempting to restore people’s belief in democracy and democratic institutions, as well as placing human rights back at the top of the agenda, at an international level.
David W Rivkin served as the President of the International Bar Association in 2015 and 2016, during which time he led a wide range of projects on business and human rights (BHR), judicial integrity, the independence of the legal profession, climate change and more.
In conversation with legal journalist Angela Bilbow, Rivkin covered many subjects, including in-depth discussion on BHR and the substantial change in the perspective of companies and how they do business. He highlighted a ‘very important transformation of soft law into hard law’, which is taking place, with new legislation being introduced on ‘human rights due diligence, which goes not just to supply chains, but also goes to environmental issues and human rights issues’.
Later, Rivkin praised the response of the international arbitration community to the Covid-19 pandemic. On the technology front, he hoped ‘that we are able to use this technology and conducting virtual hearings to really change the way we conduct international arbitration going forward’, while recognising there is still a need for in-person hearings in many situations.
Looking additionally at the way lawyers serve their clients, Rivkin stressed that ‘clients increasingly want their lawyers to be focusing on broader issues’ and the ‘important role of the lawyer as a wise counsellor’. This holistic approach helps lawyers to provide effective and efficient legal advice.
‘Particularly given the economic demands of the pandemic, the pressures put on companies, I think a lawyer serving his or her clients in that role becomes all the more important’, Rivkin said.
Mary Robinson served as President of Ireland from 1992–1997, and following this, became the UN High Commissioner for Human Rights from 1997–2002. In 2010, she set up the Mary Robinson Foundation – Climate Justice, a centre for thought leadership, education and advocacy on the struggle to secure global justice for those most vulnerable to the impacts of climate change.
In her ‘Conversation with’, Robinson spoke at length about climate justice, answering questions from interviewer Todd Benjamin and a large number from the audience.
She began by explaining the many ‘injustices that make up climate justice’, including how climate change is disproportionately affecting the poorest communities, small island states and indigenous peoples of the world – those least responsible for the crisis.
Sharing some staggering figures, Robinson stated that ‘by 2050, we’re told that something like 200 million people might be displaced by climate change’.
Reacting to the recent US election news, Robinson was pleased that the new administration appears set to reengage with climate issues following four years of the reverse. On the subject of major world powers, she also considered the crucial importance of getting China to commit to and deliver on climate targets.
Referencing the current pandemic, Robinson stated that ‘Covid-19 has brought [climate injustice issues] home like a mirror, because it has exacerbated all the inequalities’. She went on to say that while extremely destructive, Covid-19 has provided an impetus to take a renewed approach to the climate crisis.
Issues of gender equality and empowerment were central during the interview. Robinson stated that female or feminist leadership had proven effective during the Covid-19 crisis – a model of ‘problem-solving that is collaborative, that is non-hierarchical, that is listening to the science of the experts and that is a leadership of service’ – and that such leadership should be applied to address the climate crisis.
The fossil fuel industry and its lobbying power also came under scrutiny from Robinson and she referenced this as a major threat to progress on climate matters and the need to transition away from fossil fuels as swiftly as possible.
To finish the session, Robinson considered the importance of hope in remaining proactive in the face of considerable global issues: ‘The glass doesn't have to be half full. It may only have a little bit in the bottom. Work on that.’
In a ‘Conversation With…’ session on Thursday 19 November, the IBA’s President-Elect, Sternford Moyo, spoke to South African journalist Jane Dutton about his plans for his presidency and about international criminal justice. Moyo highlighted the importance of virtual conferences and noted, ‘We’ve always known that digitalisation was necessary’, but that ‘the pandemic has thrown us into the future’.
He discussed the International Criminal Court at length, including President Trump’s attacks on the Court, which he hopes the incoming Biden administration will address. He emphasised the importance of the legal profession’s independence to protect democracy and the rule of law, and to protect their jurisdiction from extreme nationalism, noting that ‘The Trump incident’ has shown that lawyers in all jurisdictions must remain vigilant. He said, lawyers ‘need to be courageous to state the requirements of the law to their governments’ and ‘maintain their independence so that they can litigate cases that hold their government accountable’, as well as scrutinising the judiciary’s independence.
Finally, he spoke of balancing interests – especially environmental rights, commercial interests, and human rights. Moyo said, ‘You cannot be a good commercial lawyer unless you have an in-depth knowledge of human rights’ and advising clients requires achieving a ‘balance of the interests of investors with the needs of the communities’ affected by mining and other extractive economies.
Professor Dr Malik R Dahlan is a multi-jurisdictional legal practitioner and transnational regulatory lawyer, UN Constitutional Expert and Founding Director of the Qatar Law Forum of Global Leaders in Law. Professor Dahlan’s breadth of knowledge and range of expertise led to an in-depth conversation on international law and more with former CNN anchor, Todd Benjamin.
‘The rule of law has to stand supreme over everything, which I think is inherently a Western value [that] we’re taking for granted globally’, said Professor Dahlan.
Citing ‘disinformation’ as the biggest threat to the rule of law, he recognised that in technology, there is an ‘open space that lacks sovereignty and is borderless’ which requires a multilateral response, possibly through mediation.
‘I think global governance needs to be super soft and decentralised. So ideas of integration will not survive and therefore we need cooperation […] we must reimagine a new global compact that’s more broadly based and extends beyond states,’ he said.
Professor Dahlan also touched on solving big international problems through ‘inter-generational dialogue’. ‘Since the Arab Spring, it has been clear to me that we need to listen and listen proactively to the concerns of young people’, he said. ‘They’re a very intelligent generation […] they’re ultra-realists and they understand the challenges that are coming and therefore tend to have this focus on what will be important in their life rather than being lost on larger themes’.