Legal and business news from the IBA - February/March 2017
American presidency: Middle East reaction to Trump
Emad Mekay, IBA Middle East Correspondent
In his first speech on foreign policy in April 2016, then-presidential candidate Donald Trump focused mostly on one region and one ‘enemy’: the Middle East and ‘radical Islam’. In his campaign rhetoric, Trump did not chart a clear path to a policy for the region. Instead, he sent so many conflicting signals that many in the region didn’t know what to make of it. His win in November and subsequent inauguration as President has done nothing to ease that confusion.
Indeed, on January 27 President Trump signed an executive order suspending all refugee admission for 120 days, an indefinite ban on refugees from Syria and a 90-day bar on citizens from seven Muslim countries – Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.
Oil and business
Under his campaign mantra of ‘America First’, Trump vowed to increase shale oil and gas production, withdraw from the Paris climate accord, drill in the Arctic and the Gulf of Mexico and lift industry regulations. These promises, if realised, will translate into an oil glut and lower prices for producing countries in the Middle East.
With less revenue, the Arab Gulf oil monarchies, especially in Saudi Arabia, will struggle to maintain the population’s current quality of life within the constraints of tightened budgets – a destabilising scenario.
On the other hand, the oil-rich nations find some solace in Trump’s business instincts. Saudi pundits have said their country can offer lucrative contracts that would support Trump’s goal of bringing wealth back to America.
More business opportunities could help the six countries making up the Gulf Cooperation Council (GCC) win back leverage lost under the Obama Administration, which focused on addressing issues such as freedom of expression, human rights and plurality in the region. ‘Let us not forget that Trump is a business man and the GCC states are rich countries,’ says Dubai-based Diana Hamade Al Ghurair, Membership Officer for the IBA Arab Regional Forum. ‘Trump’s appetite for business may get him to open trade with the GCC.’
During his campaign, Trump’s widely-reported anti-Muslim statements created more confusion as to what his policy will really look like. ‘His pro-business leanings will encourage him to engage with the GCC, Turkey and possibly Iran; his statements of suspicion against Muslims, his lack of enthusiasm for traditional alliances, and his strong statements against Iran will push in the other direction,’ Paul Salem, Vice President for Policy and Research at the Washington-based Middle East Institute, tells Global Insight.
Popular Arab sentiment
Some non-state actors in the region – including, notably, the region’s shrinking pool of democrats – say they will be net losers under Trump, while many Arab citizens have expressed nothing short of disgust at Trump’s win, as evidenced on social media and in private conversations. Remarkable to many in the Middle East, where 25 per cent of the world’s 1.6 billion Muslims live, is Trump’s blanket threat to ban Muslims from entering the US.
Citing ‘radical Islam’ is thought by some to be cover for further discrimination at home and a convenient pretext for even more violence in a badly bruised and confused region. ‘The Muslim ban is disturbing and was not welcomed by most people In the region but the region does not have a consensus over what unites us, religion? nationalism and patriotism? Or simply geography? The relations between the US and the Gulf states will continue to flourish as long as common interests of the two entities are served,’ says Al-Ghurair
Saudi, the UAE and GCC
Trump’s anti-Iran statements during his presidential campaign were welcomed by the GCC countries. Tehran’s Sunni neighbours to the West were worried when they witnessed a Shiite Iran projecting power in their backyard, occasionally aided – as in Syria and Iraq – by their traditional protector and ally, the US. Their anxiety peaked in January when the US-Iran nuclear deal came into effect, further alienating the wealthy Arab capitals and rewarding their primary opponent in the regional power balance with cash and recognition.
Some hopes of the Arab countries came true on 3 February, when the US Treasury Department placed new sanctions on Iran, the first move by the Trump administration in response to a ballistic missile test that led the White House to announce it was putting Iran ‘on notice‘ –tough language not used in many months.
‘I would expect the gulf states to be concerned with their security and render the sanctions against Iran as a virtuous act that will keep Iran from furthering its threats to the Gulf,’ says Al-Ghurair.
However, Trump has made other statements that may trouble the regimes pleased by his anti-Iran rhetoric. For one, Trump has said that he will stop arming Syrian Sunni rebels who are fighting Russia and the Iran-backed forces of Bashar al-Assad. Ending the Iran deal would be seen as a positive change; but weakening the Syrian rebels may strengthen Tehran’s hand.
Moreover, warmer ties in the region between Trump and Vladimir Putin, particularly concerning Syria, would undermine Arab powers. An assertive Putin could bring Trump closer to Iran and Assad’s position, and potentially prevent the nullification of the Iran deal.
‘Russia will have the upper hand in the conflict in Syria and ending the war there. Trump is more interested in China and business and jobs rather than Iran and its agreement,’ Ahmad Moussalli, Professor of Political Science and Islamic Studies at the American University of Beirut, told Global Insight.
Nevertheless, Philip Berkowitz, Vice Chair of the Discrimination and Equality Law Committee says Trump doesn’t appear to have more plans either for violence or unprecedented military interventions in the Middle East as some have claimed.
Berkowitz says the President knows the US is a country of laws: ‘It seems almost needless to say this, but the rule of law will prevail in the United States,’ Berkowitz tells Global Insight. ‘Trump will not change US law or the Constitution, which guarantee freedom of religion and due process of law.’
Berkowitz, however, faults Trump's executive order for using ‘religion’ as a basis for immigration decisions. ‘It cannot and must not be a legal criterion for immigration. This would be an express violation of existing law and of the Constitution,’ he says.
Berkowitz also states that Trump will be hard to deal with but expects him to work within the US laws and regulations. ‘Trump will no doubt be a demanding client – anyone who has worked with a strong chief executive knows to expect this. But he knows he must work within the rule of law,’ Berkowitz says.
Brexit: the court, the controversy and the constitution
‘Ministers’ intentions are not law’ the Supreme Court stated in the United Kingdom’s most important constitutional case for a generation. In its ruling in R (on the application of Gina Miller & Dos Santos) v Secretary of State for Exiting the European Union (EU), the Courtfound against the UK government. It concluded that the legislature – Parliament – must pre-approve the intentions of the executive – the government – to start the process of the UK’s withdrawal from the EU.
The nub of the ruling is that, constitutionally speaking, the UK’s Parliament must be consulted when the domestic rights of UK citizens may be affected.
On one level, the judgment appears technical. UK Prime Minister Theresa May has already set a deadline for the UK to give notice of withdrawal of 31 March 2017, and MPs have voted to accept this. In addition, since the Supreme Court judgment, the government has done what the Court requires and published the necessary piece of legislation regarding notification – even if it is only 50 words long. MPs voted in favour of its first reading on 1 February.
Nevertheless, the case has garnered intense scrutiny since the application in July 2016. Those supporting the case have seen the judgment as a victory for ‘the rule of law over the rule of ministers’. Vehement opponents have characterised it as an attempt by judges to thwart the democratic will of the people, as expressed in the referendum, by giving MPs the opportunity to vote against notification (and ultimately against Brexit).
There were protests outside the divisional court where the judicial review was first heard and subsequently outside the UK Supreme Court where the appeal took place in December. Some of the attention was on Gina Miller, the main applicant in the judicial review, who has received death threats. The day after the judgment, police reported they’d arrested a man on allegations of ‘racially aggravated malicious communications’ towards Miller.
There appears to be a public misconception of Miller’s role in the judicial review proceedings. Jessica Simor QC is a public and EU law specialist at Matrix Chambers. ‘Anyone who has standing, a legitimate interest in the issue in question, can bring a judicial review case,’ she says. ‘This was a standard judicial review process – there was nothing illegitimate in her bringing it.’
The justices were also in the firing line. There was unprecedented criticism from one newspaper, labelling them ‘Enemies of the People’. It’s no accident that the Supreme Court judgment makes specific reference to the independence of judges within the UK’s constitutional framework: ‘judges impartially identify and apply the law in every case brought before the courts’.
The UK constitution is there to ensure that politicians comply with the law. ‘Majority’ or ‘popular’ support does not provide a legal basis for a Minister to act
Jessica Simor QC
More importantly, the judgment will outlast media criticism and is likely to be studied well beyond the triggering and negotiation of Brexit. The judgment contains a tour through the UK’s unwritten constitution, the evolution of parliamentary sovereignty, as well as constitutional arguments put forward during the four-day hearing.
The case focuses considerable analysis on the original enabling legislation, the European Communities Act (ECA) 1972, which signed up the UK to the European Economic Community. It draws attention to how understated it was despite the fact that, ‘In constitutional terms, the effect of the 1972 Act was unprecedented.’
The Act enabled all EU law to not only become a source of UK law but also to allow EU law ‘to take precedence over all domestic sources of UK law’. It wasn’t until the 1990s, the majority judgment explains, that UK law found itself trumped by EU laws: the judgment references the famous case of Factortame (R (Factortame Ltd) v Secretary of State for Transport) where Spanish fishermen sued the UK government over British merchant shipping law.
The justices weren’t unanimous: the majority judgment was supported and co-written by eight – with three dissenters. Broadly, they took the view that the ECA 1972 is a ‘conduit’ from the EU treaties made with the UK through to domestic laws – and any EU treaty, as an international treaty, remains the preserve of ministers, not Parliament.
One particular line of dissent has caught the media’s eye: it is hidden at paragraph 240 of the judgment. Lord Reed suggests the Miller application and similar legal challenges to Brexit are putting judges and the courts in a very difficult position. ‘It is important for courts to understand that the legalisation of political issues is not always constitutionally appropriate, and may be fraught with risk, not least for the judiciary.’
Simor disagrees. ‘Article 50 notification is a legal issue,’ she says. ‘It may also be a political one but that doesn’t take away from the fact that there was a legal issue here: the UK constitution is there to ensure that politicians comply with the law. ‘Majority’ or ‘popular’ support does not provide a legal basis for a minister to act. If a minister does not have a legal basis for action, then if the rule of law is to be upheld, it must be possible to challenge the legality of that action in the courts.’
The Article 50 judgment is one step on the path to Brexit – a path that needs attention. Christopher Owen is Vice Chair of the IBA’s European Regional Forum. ‘If we do have a hard Brexit, then one of the greatest challenges is going to be on the regulatory side,’ he says. ‘How are the UK and the EU going to work together to ensure equivalence between different regulatory regimes? How do we keep the connection and flow of information, such as in financial services, where the UK is highly respected in terms of its regulation? We need to ensure what we might call “institutional connectivity” between the UK and the EU is established, and it needs to be in place at the point of withdrawal.’
The Miller case is not the end of the judicial story. Another case, which mirrors the Article 50 one, is also expected in an application brought by think tank, British Influence. The claim seeks a declaration that the UK can only leave the European Single Market by following the formal withdrawal procedure under the soon-to-be-well-known Article 127, and with the UK Parliament’s prior authorisation. As Global Insight went to press, its first hearing was due to be held in February.
Another seeks an answer to the question: ‘What happens if we change our minds?’ It seeks a ruling from the European Court of Justice on whether Brexit can be revoked once the withdrawal process has started without the approval of the 27 EU member states. The case, brainchild of Jolyon Maugham QC, is to be taken against the Irish government.
Annual Conference Scholarships
This year various sections and committees of the IBA Legal Practice Division are again offering scholarships to young lawyers who wish to participate in the 2017 Annual Conference, but who may have financial difficulties in doing so. Scholarships include free registration to the Conference in Sydney, a contribution towards travel costs to the conference and much more.
Details of how to apply can be found at tinyurl.com/Scholarships-Sydney-2017. The deadline for applications is Sunday
SEERIL Scholarship 2017
The IBA Section on Energy, Environment, Natural Resources and Infrastructure Law (SEERIL), along with its Academic Advisory Group (AAG), are pleased to announce the 2016 scholarship and research grant opportunity for students who wish to pursue advanced studies in energy and natural resources law. All applications must be received before the deadline of Sunday 26 March 2016.
More information and details about this scholarship can be found at tinyurl.com/SEERIL-Scholarships-2017.
Belfast to host 2017 Bar Leaders’ Conference and Mid-Year Meeting
The legal, business and political communities in Belfast will host this year’s IBA Bar Leaders’ Conference and Mid-Year Meeting on 24–27 May. The IBA’s membership includes more than 190 bar associations and law societies spanning over 170 countries. Most of the leadership of these bar associations and law societies, together with the leaders of the IBA and many committees, will be at the conference.
An interesting business and social programme has been compiled with input from expert panellists and commentators, encouraging interaction from delegates in several discussion sessions.
For full details of the conference, please visit www.ibanet.org.
Martin Šolc assumes presidency of the IBA and outlines key objectives of tenure
Martin Šolc is the new President of the IBA and the first person from the Czech Republic to assume the role in the Association’s 70-year history. His tenure will run until 31 December 2018.
A founding partner of the law firm Kocián Šolc Balaštík in Prague, Šolc commented: ‘It is with enormous pride and a great sense of responsibility that I have taken up the position of President of the IBA and I intend to build on the good and important work of my predecessors, the most recent being David W Rivkin. Thinking back to the spring of 1990 when I attended my first IBA meeting, I did not envisage that one day I would have the privilege of presiding over this august body. However, what I did know was that I respected enormously the work of the Association and its members’ dedication to its founding principles, particularly the underpinning ethos to bring together people from across continents regardless of heritage, religion or ideology. I knew then quite certainly that I would be a life-long member of the IBA and would contribute as best I could to this unique organisation.’
In his role as President, Šolc outlined how he intends to conduct his presidency and the key issues on which he will focus: ‘I aim to serve not only IBA members during my term, but the global legal profession in general. The world is always in flux, but presently it seems to me – more so than in times past – that there is a pressing need to promote and protect the rule of law and guard
Prior to assuming the presidency Šolc held many senior positions in the IBA, including Vice-President (2015–2016), Secretary-General (2013–2014), Co-Chair of the International Bar Association’s Human Rights Institute (2009–2010) and Chair of the Public and Professional Interest Division (2007–2008). He has been a member of the IBA for more than a quarter of a century, initially representing the Czech Bar Association on the IBA Council. He held the presidency of the Czech Bar Association in 1994 and was a member of its Management Board from 1990–2002.
Read more about Martin Šolc’s appointment at tinyurl.com/SolcIBA.
IBA launches global survey on why women lawyers leave law firms
A global investigation into the reasons why so many women lawyers leave law firms, and on occasion the legal profession entirely, has been launched by the IBA Legal Policy & Research Unit (LPRU). The investigation also seeks to secure information on the professional barriers experienced by women. Once the data has been collected and analysed, a report aimed at law firms and legal associations will be published. The report will include practical measures for stemming the attrition, as well as strategies for developing retention and re-engagement.
The in-depth survey will collect information from participants on topics such as: progression since admission to the legal profession; explanations for departure; and future career/non-career aspirations. None of the collected data will be attributed to individuals or organisations. It will be de-identified and aggregated for analysis and reporting only.
The IBA LPRU global survey is based on the national model of the Law Council of Australia’s National Attrition and Re-engagement Study and will take approximately 15–20 minutes to complete.
To take part in the survey, visit www.ibanet.org.
The deadline for completing the survey is 28 April 2017.
Ghana Judiciary and Bar adopt IBA Judicial Anti-Corruption Compact
From left: Benson Nutsukpui, Ghana Bar President; Dominic Ayine, Deputy Attorney-General; Chief Justice Georgina T Wood; David W Rivkin; Nene Amegatcher, past President, Ghana Bar and incoming IBA African Regional Forum Co-Chair
Ghana has become the second country to adopt the IBA Judicial Anticorruption Compact, and the first in Africa to do so. The IBA Judicial Anti-Corruption Compact is a document symbolising a unified commitment by the judiciary and members of the legal profession to prevent any corrupt practices from impacting the judicial process, to defend the rule of law and to uphold ethical principles throughout the profession.
The official signing took place on 21 December 2016 in Accra, during the final month of David W Rivkin’s term as IBA President.
At the core of the Compact is an individual commitment by all members of the judicial process – judges, lawyers, prosecutors and court administrators – that they will not engage in any form of corrupt activity, that they will report any instances of corrupt activity of which they become aware, and further, that they will work to reinforce an impartial and independent judiciary separate from other branches of government.
Read more by downloading this historic signing.Download Historic signing
Download the IBA Judicial Anticorruption Compact signed by Mexico.
OECD and IBA to develop practice guidance to fight corruption
The IBA and OECD have formed a task force to develop professional conduct standards and practice guidance for lawyers involved in establishing and advising on international commercial structures and recommended actions for governments. The principle motivation for forming the OECD-IBA Task Force on The Role of Lawyers and International Commercial Structures is to create a key component in the global fight against corruption. The Task Force will work to develop appropriate guidance with respect to forming international commercial structures, while ensuring that confidence in both the lawyers’ role and the core principles of the legal profession are upheld.
Additional functionality added to IBA App
The IBA App has been updated and is now even more user-friendly, providing members with access to the latest film, podcasts and articles from the IBA. App users can peruse the content library and add items of interest to their own download area. In addition, members can update their IBA profile, search fellow members’ profiles and make contact via email.
Download it for Android or Apple iOS and log in with your IBA membership user ID and password to get started.
Outstanding Aspiring Lawyer of the Year
The Law Students’ Committee has presented an award to a student who has not only shown distinction in academic achievement, but also demonstrated a longstanding commitment to promoting human rights and rule of law. The 2016 recipient of the Committee’s Outstanding Aspiring Lawyer of the Year Award, sponsored by LexisNexis, is Rebaz Khdir. He is currently undertaking his thesis on addressing human rights and humanitarian law violations committed by ISIS in Iraq and Syria.
Read more at tinyurl.com/AspiringLawyer2016.
Sir Bruce Slane
It was with great sadness that the IBA received news of the death of Sir Bruce Slane, New Zealand’s first Privacy Commissioner. Sir Bruce was Chair of the Host Committee for the IBA Annual Conference in Auckland in 2004.
Former IBA President Fernando Peláez-Pier paid tribute to him. ‘Bruce was a quiet, calm and learned lawyer but with strong views and criteria. It was always a pleasure to work with him and to discuss issues related to the IBA constitution, especially when discussing the work done by the Review Committee for the restructuring the IBA, back in 2004. A highly respected lawyer in New Zealand, he was the first New Zealand Privacy Commissioner. From when I met him, we interacted and worked together, particularly in the organisation of the 2004 IBA Annual Conference held in Auckland when he was the President of the Host Committee and I was the Chair of the LPD-SBL. It was then that I had the opportunity to discover the humble man’s interest in social justice and human rights. He will be especially missed by those who worked with him and learned from him.’