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Wednesday 11 October (0930 - 1030)

Programme details

This special session will feature Australian leaders in the digital economy, new technology and disruptive change, guiding us through some of the major changes and effects we can expect in life and work in the years ahead. Following on from this, the session will split into these sessions (1030 - 1230): • A trip through travel industry technology today and tomorrow (Room C2.1, Convention Centre, Level 2) • Blockchain and its implications regarding business law (Room C2.3, Convention Centre, Level 2)

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Wednesday 11 October (0930 - 1045)

International Commerce and Distribution Committee (Lead)
Young Lawyers' Committee

Programme details

When drafting or reviewing an international sales contract, lawyers often concentrate on the operative terms and conditions of the contract and pay less attention to those provisions 'buried at the back' of the document – the so-called boilerplate clauses. Those lawyers may do so at their peril. This session will focus on those boilerplate clauses (entire agreement, severability, assignment and the like) and will unveil their meaning and their importance in the drafting process, especially if the contract is between contracting parties located in different countries. Our panelists will provide sometimes amusing and sometimes frightening examples of how negligent drafting of these clauses may create unintended consequences for the parties and fatal effects on a whole agreement. This practical session will help you learn how to stay out of the “hot seat” with clients and avoid issues with the boilerplate of your international sales contracts in the future.

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Wednesday 11 October (0930 - 1045)

Presidential Task Force on Climate Change Justice and Human Rights (Lead)
Energy, Environment, Natural Resources and Infrastructure Law Section (SEERIL)
Human Rights Law Committee
IBA's Human Rights Institute
Indigenous Peoples Committee
Litigation Committee

Programme details

This session will examine how the role of law, legal systems, lawyers and the judiciary are playing increasingly critical roles in the urgent societal response to global climate change. The December 2015 Paris Agreement has been called ‘historic’. However, despite its ambition to keep the global average temperature increase to below 2°C, greenhouse gas emissions continue to rise. As the United National Environment Programme Emissions Gap Report 2016 makes clear, countries’ current pledges and ‘nationally determined contributions’ under the Paris Agreement still leave a significant deficit to achieving the 2°C target. In October 2014, the IBA’s ground-breaking report ‘Achieving Justice and Human Rights in an Era of Climate Disruption’ found that legal systems and institutions were inadequate and ill-equipped to deal with the nature and scale of the problem. The report provided over 50 recommendations to address legal systems’ deficiencies and progress climate justice. Three years on from the release of the 2014 IBA report, this session will provide the opportunity for an updated discussion of important insights from a variety of perspectives, practices and various IBA committees, including Litigation, Human Rights Law, Indigenous Peoples and the Judges Forum, to explore the latest legal, judicial and policy developments. The session will address: • the challenges for implementing the Paris Agreement and its impact on multinational entities; • the significance of the Paris Agreement’s references to human rights and climate justice; • the potential for human rights law to play a key role in addressing climate change and the Paris obligations; • the legal obligations that will arise out of countries efforts to achieve their ‘nationally determined contributions’ under Paris; • the implications and the potential of recent innovative climate-related litigation on several continents; and • how the courts are increasingly playing a role in addressing climate change, including the current and recent cases addressing parties’ efforts to seek redress in the courts. The session also will include a discussion of the work of two IBA Presidential Task Force on Climate Change Justice and Human Rights Working Groups: the Model Statute for Climate Change Remedies and the Legal Aspects of Climate Adaptation working groups.

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Wednesday 11 October (0930 - 1045)

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No area of capital markets activity has seen more creativity than the efforts of management, financial sponsors and investment bankers to escape the constraints of accounting rules when it comes to presenting company financial performance. Alternative measures of financial performance, in ever-more exotic forms, abound in company reports, initial public offering (IPO) prospectuses and associated marketing materials, often telling quite a different story from International Financial Reporting Standards (IFRS)/generally accepted accounting principles-compliant measures. After several years of following a relatively relaxed approach to such information, regulators in many countries are increasingly clamping down on perceived abuses of alternative performance measures through guidance limiting their use and presentation. This panel will explore the uses, and abuses, of such alternative performance measures from a variety of perspectives – private equity, banking, the buy-side, auditing and legal – and investigate whether such measures actually help attain the objectives for which they are used.

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Wednesday 11 October (0930 - 1045)

Arbitration Committee (Lead)

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Soft law mechanisms have been both praised and criticised. In particular, it has been argued that, although they may contribute to levelling the playing field in international arbitration, they also limit, to some extent, party autonomy. Both perspectives will be discussed.

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Wednesday 11 October (0930 - 1045)

Law Firm Management Committee (Lead)

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Leading organisations around the world have for some time led and managed their people through coaching and mentoring. This practical session will give participants the keys to deal with some of today’s most complex talent and leadership issues in law firms. Whether it is managing motivation and performance of young lawyers, designing an employer value proposition capable of attracting the best talent, building client and commercial skills from an early stage in careers, retaining the best lawyers or building capability for the next generation of leaders of the firm, the key in modern management lies in investing in individual, tailored and on-the-job learning relationships.

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Wednesday 11 October (0930 - 1045)

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The prohibition against the use of force among sovereign states is embedded within the UN Charter, as well as many other instruments of international law. The only exceptions to said prohibition are instances of individual or collective self-defence, and the enforcement of international peace and security. Both these exceptions have been, and continue to be, topics of fascinating debates among international law scholars and practitioners. Discussions concerning the concepts of pre-emptive and anticipatory self-defence, for example, or on the scope of Chapter VII enforcement of international peace and security abound in international legal circles. In view of the likely activation of the International Criminal Court's jurisdiction on the crime of aggression, these questions are destined to remain at the centre of the international community’s legal debates. Questions surrounding, for example, whether self-defence can be invoked against non-state actors, what are the limits of non-combatants evacuations operations, on the scope and existence of a right to humanitarian intervention, and on the classification of an armed conflict are ever-consequential in that they enable, prevent, or otherwise infringe upon considerations on the use of military force in the territory of a non-consenting State. By discussing international jurisprudence on the subject, State’s understanding of customary international law as evidenced by their State practice and opinio juris, and doctrinal and scholarly views, this panel will offer an informed discussion on the fundamental question of whether or not expansive interpretations of the exceptions to the prohibition against the use of force, or emerging ‘justifications’ for contraventions to the prohibition, are taking root among the international legal community, and on what is the status of international law on the subject.

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Wednesday 11 October (0930 - 1230)

Taxation Section (Lead)
Anti-Corruption Committee
Private Client Tax Committee
Taxes Committee

Programme details

Many holding structures for both individuals and corporates have historically been driven by a desire to maintain the privacy of the ultimate owners. Increased transparency requirements will render this objective much harder to achieve. How will holding structures change as a result? Paradoxically, could the transparency changes lead to a greater focus on tax optimisation if they prevent privacy being maintained, so eliminating any need for compromise between the two objectives?

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Wednesday 11 October (0930 - 1230)

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Whether in the mining or the oil and gas sector, disputes over natural resources arise in an incredibly diverse range of ways. Projects are large, complex and multiparty, and their impact is usually felt far beyond the contracting parties. This session will review the full range of typical disputes in a natural resources context. Starting with the inception of the project, disputes may arise around ownership of title to the asset, including native or Aboriginal title and overlapping exploration claims. Shareholder and joint venture disputes are common. For companies raising finance in the debt and equity capital markets, disputes with investors are a risk, as well as regulatory action. Once the project is in production, issues frequently arise out of joint operating and production-sharing agreements, often caused by force majeure or natural events. Disputes can arise over equipment supplies and trading. And projects can be expropriated by host governments or the legislative or regulatory regime in country may be modified to the significant detriment of the investor. All of this is to be seen in the context of low commodity prices. How does that play out? Finally, the session will look at claims that may be brought by third parties, such as First Nation claims to land that is affected by the project, or local communities that have been displaced or affected by environmental disasters. The session will also consider whether claims that the project has caused some form of climate change may be sustained.

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Wednesday 11 October (0930 - 1230)

Criminal Law Committee (Lead)
Business Crime Committee
Litigation Committee
Media Law Committee

Programme details

High-profile criminal prosecutions present numerous challenges for defence counsel. Not only must they prepare to represent their client in a court of law but they must be prepared to respond to the court of public opinion as well. This panel, composed of experienced practitioners in both criminal and media law, will examine effective tactics for protecting your clients’ interests and rights in high-profile matters.

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Wednesday 11 October (0930 - 1230)

Mining Law Committee (Lead)
Oil and Gas Law Committee
Taxes Committee

Programme details

Mineral royalties are one of the most challenging issues that the international mining industry has been debating for quite some time. In times of high commodity prices, mining companies – major, juniors, state-owned, local and international – take their exploration and production activities into all kinds of countries, ones with little mining experience, others with a long mining history. What we witnessed when commodity prices were high was a movement by a number of countries to introduce new regulations for royalties. Countries with no or little mining tradition were aiming to collect their share from investors. Governments of jurisdictions with years of experience in mining were responding to the public perception that mining companies should contribute further. With the downturn, these same countries are reviewing previous decisions and changes. The truth is that governments never believe that they are taxing too much, companies rarely agree that they pay too little and the public, in most cases, doesn’t believe the benefits from royalty payments are what they should be. This session will attempt to discuss experiences from different jurisdictions on devising, assessing, paying and accounting for royalties. It will also debate the relation of mining royalties to the overall tax system, its role in attracting new investments and benefiting affected communities, as well as mechanisms to ensure transparency, governance and management of royalty revenues by governments.

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Wednesday 11 October (0930 - 1230)

Mediation Committee (Lead)
Bar Issues Commission
Forum for Barristers and Advocates
Senior Lawyers' Committee

Programme details

Nothing damages the legal profession more than when lawyers wash their dirty linen in public or, worse still, cause their clients unnecessary anxiety, expense and delay solely as a result of personal issues arising with the opposing counsel. Sometimes disputes even lead to the eruption of altercations and physical confrontations between lawyers. Be it conflicts arising as a result of transfers between law firms, feesharing disputes between partners, interpersonal conflicts between lawyers, conflicts between attorneys and secretaries or among staff members, how to cope with high-conflict office colleagues or just handling difficult conversations, this session explores best practice conflict resolution techniques in the legal arena. Leading mediators, negotiators and professional executive coaches specialising in dispute resolution will offer tips and tricks of the trade to help professionals break deadlock, facilitate understanding and help lawyers and law firms resolve disputes effectively and efficiently in and out of court, using arbitration, mediation or best, within the firm. This is your time to hone your skills to get yourself out of the mess before it gets too hot to handle.

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Wednesday 11 October (0930 - 1230)

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Africa appears to be behind other regions of the world as far as the development of mega law firms and provision of specialist legal services is concerned. What political, economic, legal education and regulatory reforms are required to accelerate this aspect of the legal services sector in Africa?

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Wednesday 11 October (1030 - 1230)

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Watch a mid-20th century film involving any mode of transport and the impact of technology in the intervening years is starkly obvious. Some technology facilitated travel and tourism – jumbo jets made travel faster and less costly than previous modes. Some technology also reduced travel, for example, inexpensive conference telecom. What technologies are impacting or about to impact travel and tourism today and what effect will they have? This discussion will survey current important developments, such as: • What will be the impact of virtual and augmented reality – will it promote travel or be a substitute for it? • How will legal systems handle technologies, such as Uber or Airbnb, that potentially disrupt existing regulatory systems? • Will the interplay between big data and technology facilitate secure travel – or endanger it?

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Wednesday 11 October (1030 - 1230)

Technology Law Committee (Lead)
Cybercrime Subcommittee
Leisure Industries Section

Programme details

Blockchain technology began as the basis for bitcoin transfers, and is assuming various interesting roles in the transfer of information in various sectors, including health, finance and secured transactions. In this panel, experts and practitioners will explain the fundamentals of blockchain technology, and discuss the private and public uses and smart contracts. The panellists will discuss current issues that intrigue academia and practitioners alike, including the legal effects and applications of smart contracts on the business, the identification of parties, closing mechanisms, confidentiality and liability, and others. Current practice and legislation will be reviewed.

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Wednesday 11 October (1115 - 1230)

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Statistics suggest that cross-border trade/investment within the Asia Pacific region is clearly rising, in no small part because of government-sponsored initiatives and the opening-up of markets in many Asian countries to foreign investment. But investor-state arbitration is new in Asia – not many investors or states have been involved in investor-state arbitration. The traditional way or preference for resolving disputes is via government-to-government communications and, culturally speaking, there is reticence to challenge governmental authorities in legal proceedings. However, will the strong flow of cross-border investment in the region usher in a new era of investor-state arbitration among Asian countries and investors? Will the growth in Asian cross-border investment mean a growth in participation in investor-state disputes by Asian parties? If so, how should practitioners respond to the needs? Hear speakers with first-hand knowledge of investor-state dispute resolution in the Asia Pacific region – bilateral investment treaty (BIT) arbitration or investor-state dispute resolution through mediation- and share the insights on how to navigate the cultural, political and practical challenges of investor-state dispute resolution in Asia Pacific, this ever-changing region. What are the greatest challenges that practitioners face in investor-state arbitration in Asia Pacific? What lessons/experiences can be learned/shared from arbitrators’ perspectives? How are investor-state disputes being resolved by mediation? Any comments on using IBA rules on resolving investor-state disputes by mediation?

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Wednesday 11 October (1115 - 1230)

Access to Justice and Legal Aid Committee (Lead)
Diversity and Equality Law Committee
Healthcare and Life Sciences Law Committee

Programme details

This session will detail the manifold legal and other issues concerning access to justice for those with disabilities around the world. Presenters will highlight the role of substantive law-making in eliminating discrimination, the impediments to the use of legal systems across jurisdictions by people with disabilties and the role of legal aid organisations in protecting their rights. Research undertaken on behalf of the committee will be presented to the session, and an opportunity for delegates to discuss the results will follow. The session will be of interest to those acting for people with disabilities, as well as those whose clients may find themselves in breach of laws designed to promote the interests of, and eliminate discrimination against, them. This will be a thought-provoking and timely session given the responsibility of the profession and its clients at law for the most vulnerable group in any jurisdiction.

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Wednesday 11 October (1115 - 1230)

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When the deal is agreed, how does the buyer make sure it is protected from preclosing problems? How does the seller make sure it gets the value it bargained for? Indeed, closing risks and incentives are increasingly important in public takeovers, including: • regulatory, antitrust and other possible government approvals; • financing; • material adverse change; • minority shareholders or activist interferences or litigation; • interlopers; and • shareholder approval and other concepts (including common and civil law way-outs). This session will explore current market terms and negotiations of these issues with top M&A lawyers in the context of recent public deals, as well as lessons or ways to secure or accelerate closing.

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Wednesday 11 October (1115 - 1230)

Law Firm Management Committee (Lead)
Young Lawyers' Committee

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What do young lawyers envisage the law firm will look like in 10 to 15 years and how can today’s law firm management provide the support and necessary tools to develop the legal, technological and people skills as well as required leadership qualities in young lawyers so that they are equipped for the law firm of the future?

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Wednesday 11 October (1115 - 1230)

International Commerce and Distribution Committee (Lead)
Mining Law Committee

Programme details

Complex and manufactured assets means detail, documentation and often cross-border considerations. This session will consider issues around purchase and sale contracts, turn-key projects and related aspects. Consideration could be given to the challenging and usual areas of negotiation, contract drafting and where key challenges lie. Delivery and construction can go smoothly – but what about warranty matters?

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