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Issue 25 – Friday 9 October 2020

The latest issue of the International Bar Association’s Human Rights Institute (IBAHRI) Covid-19 Human Rights Monitor includes further outbreaks in refugee camps, contraventions to an individual’s right to access a lawyer through digital hearings and internet shutdowns undermining access to healthcare information during the pandemic.

Issue 23 – Friday 25 September 2020

The latest issue of the International Bar Association’s Human Rights Institute (IBAHRI) Covid-19 Human Rights Monitor includes a UNHCR report on refugee children missing school due to the pandemic, further spread of the coronavirus in prisons and the UK government's failure to consider the impact of the crisis on those living with disabilities.

Video: Celebrating the IBA Arbitration Day's 25 years

This video, which was prepared for the 25th Annual IBA Arbitration Day in Singapore on 23 February 2024, celebrates the quarter of a century that the Arbitration Day has been held. David Rivkin and Wolfgang Kühn, co-chairs of the first Arbitration Day in 1997, together with ten other chairs and co-chairs from the event’s history, reflect on the diverse topics covered in previous editions, consider the impact that the Arbitration Day has had on the development of arbitration across the world, and share their ambitions for its future.

IBA Global Showcase to take place 25-29 October 2021

Residential leases: caps on indexation of rent in 25 different jurisdictions

This article looks at the approach of 25 different jurisdictions to caps on indexation of rent for residential leases. As residential lease contracts usually cover a long term, it is common to agree on an indexation of the rent to secure that the rent level follows the development of general cost of living. This way, a real estate investment has the potential to be an inflation secured investment.

The SEC’s tough stance on intermediary institutions: compliance and litigation risks

This article discusses the recent SEC case involving PwC and highlights the wider implications for intermediary institutions providing professional services in a tightened regulatory and enforcement regime in China’s banking and financial sector.

A Brief Discussion on the Implications, Regulation and Prospects of AI in Dispute Resolution Practice with a Focus on China

Mediating Disputes Involving Chinese Parties

Mediation is on the rise internationally as a means to settle disputes in a cost-effective manner. Chinese parties appear to be increasingly interested in mediation as an option. This article examines the evolving landscape of mediation in China and internationally. It considers how mediation for Chinese parties is evolving and whether mediation is a good option for Chinese parties in cross-border disputes. Commercial mediation has seen remarkable growth, bolstered by a supportive PRC judicial system and legislative initiatives encouraging parties to find harmonious ways to resolve disputes. The article analyses the three primary types of mediation in China: people’s mediation, administrative mediation, and commercial mediation. It also looks at mediation rules and proceedings in common law jurisdictions, such as Hong Kong, Singapore, and the United States. The article anecdotally considers the cultural elements, emphasising the Chinese parties’ preference for evaluative mediation styles as a reflection of civil law. Through case studies of international disputes involving Chinese and US parties, the article illustrates the practical dynamics of mediation involving Chinese parties and underscores the importance of cultural sensitivity in international mediation. As Chinese parties continue to go global, mediation is emerging as an attractive option for efficient and cost-effective dispute resolution. This analysis assesses whether the promotion of mediation is yielding tangible outcomes and explores the future of mediation involving Chinese and foreign parties.

News corner: China’s new Tariff Law and implementing regulation of the Law of the PRC on the Protection of Consumer Rights and Interests

On 26 April 2024, the Chinese State Council passed the Tariff Law of the People’s Republic of China, which came into force on 1 December 2024. The new law consolidates existing rules in different documents and certain practices in one administrative law.

Utilising Generative AI in Businesses: Risks and Best Practices

The rise in popularity of generative artificial intelligence (‘generative AI’) has ignited the discussion on whether junior employees can be replaced by it. Some have gone to the extent of questioning whether professionals, such as lawyers, can also be replaced by generative AI. Is it wise to replace junior employees or lawyers with generative AI? What factors should be considered before deploying generative AI tools in your business? To consider these questions, we first need to understand the basic workings of generative AI and what it can offer. Fundamentally, AI is intelligence that is not biological. The general understanding is that machines will be ascribed with this intelligence. These machines have the ability to interpret, learn from and process external data in a way that is similar to the capabilities of the human mind. Generative AI is a type of AI program that generates content from a data set. It uses deep learning, a type of machine learning system that behaves like a neural network to simulate the functions of a human brain. In other words, it can mimic human intelligence by exhibiting analytical skills to create new content. Not only can generative AI be utilised in chatbot programs to create text, but it can also be used in programs that can create images, sound or videos. This article will consider two major forms of generative AI, in the context of risks to businesses: chatbots using generative pre-trained transformer technology programs; and image generating programs.

China’s Foreign State Immunity Law 2023: Implications for Enforcement of Judgments and Arbitral Awards against States and State Entities in the People’s Republic of China, Hong Kong, and Macau

The new Foreign State Immunity Law 2023 of the People’s Republic of China came into force on 1 January 2024. This shifts the country (as well as its special administrative regions, Hong Kong and Macau) away from absolute state immunity to restrictive state immunity, bringing it more in line with the relatively prevalent practice among the international community. This article discusses the status of state immunity in public international law, analyses the new law’s provisions and examines practical challenges that will be faced by those seeking to utilise this law to enforce judgments or awards against foreign states and state entities, and the new law’s innovations that go beyond the United Nations Convention on Jurisdictional Immunities of States and Their Property of 2004 and the UK State Immunity Act 1978.

Brexit: Swiss case shows UK-EU equivalence not guaranteed

In a dispute that has clear implications for the United Kingdom, the European Commission has al-lowed the European Union equivalence arrangement for Swiss stock markets to expire. In the event of Brexit, the UK would need to pursue an equivalence relationship for the City of London with the EU.

Middle East: Child labour on the rise as conflicts and tensions grow

As wars, conflict and political tension have increased in the Middle East over recent years, so have the number of children ensnared in hazardous labour and child exploitation, says a recent report by the International Labour Organization commissioned by the Cairo-based Organization of Arab States and the Arab Council for Childhood and Development (ACCD).

Organ donation: UK learns from international experience on presumed consent

In March, the Organ Donation (Deemed Consent) Bill passed into UK law. From 2020, all adults will be considered as potential organ donors unless they choose to opt-out or are part of certain excluded groups – a move that follows similar legislation around the world.

The US Presidency: Abortion at the threshold

In recent weeks, nine American states have enacted highly controversial new laws severely restricting the rights women to choose to have an abortion. Six states – Georgia, Ohio, Missouri, Kentucky, Louisiana and Mississippi – passed bills banning abortion as early as six weeks into pregnancy.

American Presidency: The Mueller Report and the Barr report

In releasing the long-awaited Mueller Report on 18 April, Attorney-General William Barr repeatedly served up the sound bite ‘no collusion’.

US anti-trafficking law continues to court controversy

In April 2018, American President Donald Trump signed into law a package of bills aimed at curbing the online exploitation of sex trafficking victims. It was hailed by legislators as a boon to prosecutors in their fight to police websites where sex is sold, as well as enabling trafficking victims to file lawsuits against these sites. The immediate impact was staggering, but there are growing concerns the law is pushing the problem of sex trafficking further underground.

Brexit: Banking sector seeking much-needed clarity to minimize disruption

As the date currently set for the UK’s exit from the European Union approaches, the prospect of a no deal Brexit at the end of March has become increasingly real. On 15 January, MPs emphatically voted down the withdrawal deal put forward by Prime Minister Theresa May, by an historic majority: 432 – 202. They’re due to vote on the government’s Plan B option on 29 January, with key sectors of the economy keen for certainty that is currently distinctly lacking.

Cambodia: confusion and fear as voters head to the polls

When a relative approached Vicheika Kann, a Cambodian journalist for radio network Voice of America, and asked her about compulsory voting, she was taken aback

Domestic abuse: draft UK bill provisions underscored by Sally Challen retrial

In January 2019, the UK government published a landmark draft Domestic Abuse Bill, providing the first statutory definition of domestic abuse in England and Wales. Alongside incidents of physical violence, the new definition recognises psychological coercion and financial control as abusive behaviours.

Infected deals: M&A in times of Covid-19

During the webinar a panel of very experienced, highly ranked M&A lawyers from relevant jurisdictions, such as Brazil, Germany, Japan, the United Kingdom and the United States, shared their recent experiences and further expectations about the effects of Covid-19 on pending, done and future deals.

The Global Impact of the Covid-19 Pandemic on Commercial Dispute Resolution in the First Year

While the pandemic disruption has extended for far longer than initially expected, courts (after the first wave), arbitral institutions and stakeholders in commercial dispute resolution have largely continued operations, increasingly supported by innovative digital technology, flexible scheduling and flexible cost structures, among other tools.

Mergers and acquisitions masterclass (IBA Annual Conference, 2019)

Mergers and Acquisitions Masterclass Report on a session of the Corporate and M&A Law Committee at the IBA Annual Conference, Seoul. Wednesday, 25 September 2019

Law firm finances: everyone’s business

A summary of the panel session at the IBA Annual Conference 2019 in Seoul, chaired by Hermann Knott from Andersen Tax & Legal, Germany; PPID/SPPI Representative, LPD Council and Kathryn Rousin from White and Case, England; Co-Chair, Academic and Professional Development Committee. The session started with an overview of the South Korean legal market, followed by discussions on managing financial performance, alternative structures, IPO and a discussion on looking to the future.

Trends in private M&A: representations and warranties indemnity insurance (IBA Annual Conference, 2019)

Trends in Private M&A: Representations and Warranties Indemnity Insurance. Report on a session of the Closely Held and Growing Business Enterprises Committee and the Corporate and M&A Law Committee at the IBA Annual Conference, Seoul Wednesday, 25 September 2019

The Current State of US Regulation of the Use of AI in Dispute Resolution

Since the release of Chat GPT in late 2022, the use of generative AI by attorneys has exploded in the United States. The two main drivers are: (1) the ease of access to and use of generative AI to seemingly do what heretofore required human capital; and (2) a relentless market pressure to perform legal work more efficiently. This article explores the current state of how courts and State Bars throughout the United States, along with ADR provider JAMS, are regulating the use of GenAI in the litigation context. It identifies emerging trends common to the approach taken by the federal judiciary and State Bars including limited use, transparency, proficiency, disclosure, human oversight and verification. Finally, it explains why it is unlikely, in contrast to the EU’s approach, that the US Congress will pass federal regulation limiting the use of AI by judges and arbitrators, and instead, leave such potential future AI regulation to the provenance of the States.

Deferred consideration by ‘foreign owned or controlled’ Indian companies – regulatory overhang

After the Reserve Bank of India issued notices to a few ‘foreign owned or controlled’ Indian companies for deferring part of the consideration payable in regard to their downstream investments in other Indian companies, Indian transaction advisors are faced with a dilemma. Structuring deals with deferred consideration for acquisitions through ‘foreign owned or controlled’ Indian companies has become a risky proposition. This article argues that a complete ban on this practice is not only commercially impractical, but also potentially misaligned with the original regulatory intent.

Arbitration Update - The new FIDIC certifications: will they pass the test?

Electric mobility in India: an aspirational dream or a foreseeable reality?

As the world looks towards a sustainable future, India stands at the verge of a major transportation upgrade, where the promise of e-mobility shines as a tangible, foreseeable reality. As India’s urban landscape faces the challenges presented by burgeoning environmental concerns, electric vehicles emerge as a compelling solution, bridging the gap between sustainable living and economic progress.

What is dead may never die: transfer of criminal liability from absorbed company to absorbing company following a merger

By Emmanuel Moyne, Nima Haeri and Hubert Pouradier-Duteil. What is dead may never die: transfer of criminal liability from absorbed company to absorbing company following a merger