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Issue 21 – Friday 11 September 2020

The 21st edition of the Monitor covers topics including a fire in Moria refugee camp forcing refugees ill with Covid-19 to flee and the growing crisis for worldwide refugee camps, the effect on low-income earners, including redundancies and homelessness and the difficulties for those living with disability in the reopening of schools.

Issue 11 – Friday 3 July 2020

The latest issue of the IBAHRI Covid-19 Human Rights Monitor contains updates on gender-based violence and women’s health in India and Northern Ireland. Also: refugee camps, including the Kakuma Refugee Camp in Kenya, which has no reported cases of Covid-19 to date.

Podcast: Torture A-C - Human Rights Law Committee

Episode 1 of an IBA Human Rights Law Committee podcast series looking at both obvious and overlooked aspects of litigating and documenting torture, in an ‘A-Z’ format. This episode covers arbitrary detention, as both a form of torture and environment which renders individuals susceptible to torture; beatings – physical torture; and ‘confessions and clean teams’.

Davos pushes for cyber security agenda at the C-Suite

Cyber security was trumpeted as one of the top five global risks at this year’s World Economic Forum in Davos. As the deadline for implementing the EU General Data Protection Regulation looms large, there is growing pressure on businesses worldwide to ensure they are making cyber security a top priority.

SEC proposal paves the way for contemporaneous 506(b)/506(c) fundraising strategies

The US Securities and Exchange Commission announced on 4 March 2020 that it has voted to propose a set of amendments that would clarify and harmonise integration concepts for several forms of exempt offerings. One amendment proposes to shorten the safe harbor in Regulation D to 30 days, which will provide more flexibility for small business and real estate securities offerings. This article summarises the integration of sequential Rule 506(b) and Rule 506(c) offerings.

CJEU judgment C-80/19: national certificate of inheritance versus European Certificate of Succession

An article covering the judgment of the Court of Justice of the European Union (first chamber) of 16 July 2020 C-80/19.

IBAHRI and ATI pen letter to Turkey’s President condemning conviction of 11 medical professionals

The International Bar Association’s Human Rights Institute (IBAHRI), in conjunction with the Anti-Torture Initiative (ATI), has written to Turkey’s President, Recep Tayyip Erdogan, condemning the conviction of 11 members of the Turkish Medical Association (TMA) Central Council on terrorism charges.

Concerns over ‘outmoded, 20th century’ nuclear option following UK Government go ahead for Hinkley Point C

After ten years of uncertainty, a proposal to build a new nuclear power station in the UK has finally been given the go-ahead by UK Prime Minister, Theresa May. The project at Hinkley Point in Somerset, originally launched a decade ago, has had a number of false starts since French energy giant EDF first agreed to construct the new power station, promising electricity from Hinkley by 2017. Ten years on and the plant may finally start to be built.

Fighting corruption in Brazil: Federal Decree No 11,129 of 11 July 2022, regulating anti-corruption law

The Anti-Corruption Law was first regulated, at the federal level, by Decree No 8,420 of 18 March 2015. On 12 July 2022, more than seven years later, Federal Decree No 11,129 of 11 July 2022, which regulates Anti-Corruption Law and repeals Decree No. 8,420/2015, was published by the Brazilian government. This article provides a detailed overview of the new Decree.

Landmark ruling of the Court of Justice of the European Union on airport charges: Case C-379/18

This article focuses on a ruling of the Court of Justice of the European Union concerning the competence of the Independent Supervisory Authorities to determine of airport charges. Through analysis of the ruling in question and identification of the peculiarities of the Italian system, this article provides an overview of the main legal barriers to the implementation of Directive 2009/12 on airport charges.

Multinational LATAM companies in distress: Chapter 11 or Chapter 15 of US Bankruptcy Code – opportunities and pitfalls

Report on the session of the Insolvency Section of the Latin American Regional Forum at the IBA Annual Conference in Miami

Latin American airlines file for Chapter 11 in response to Covid-19: forum shopping or sound strategy?

A webinar presented by the IBA Insolvency Section, 8 September 2020, 1400-1500 BST

Chapter 11 rehabilitation proceedings in Korea of a shipping company - Maritime and Transport Law Committee, July 2020

This article is aimed at providing detailed information about the procedures and pertinent details of rehabilitation or Chapter 11 proceedings of Korea regarding shipping companies.

Report on Tables 11 and 12 of Interactive Workshop: Selected corporate topics connected to developments and consequences of the global pandemic – part one

Report on session at 6th IBA Global Entrepreneurship Conference, 16 – 17 May 2022, presented by the IBA Closely Held and Growing Business Enterprise Committee

Case Comment: The CJEU Expands the Scope of the Definition of Sensitive Personal Data in the GDPR: Case C-184/20 Vyriausioji tarnybinės etikos komisija

This was a judgment of the Grand Chamber in the Court of Justice of the European Union, after a request for a preliminary ruling was made by a regional administrative court in Lithuania. It is significant because it has broadened the scope of the definition of sensitive personal data in Article 9 of Regulation (EU) 2016/679 (the ‘GDPR’). The judgment expands the prohibition of the processing of sensitive data to include inference. This will have repercussions for companies, public bodies and registers that make personal data publicly available.

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.

China’s restrictions on cross-border transfer of personal information: an update on regulatory policy and practical implications

This article will outline the development of China’s restrictions on the cross-border transfer of personal information (PI export), detailing PI export mechanisms provided by the Personal Information Protection Law. It will also explain the practical implications of the restrictions.

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.

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

Alipay and the impact of e-payment systems resulting in new regulations in China and other jurisdictions - China Working Group

By Yi-An (Ann) Lai. Alipay and the impact of e-payment systems resulting in new regulations in China and other jurisdictions.

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.

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.

Taiwan: IBA report on gender disparity in law shows women are underrepresented in senior roles

The latest research by the International Bar Association (IBA) Legal Policy & Research Unit (LPRU) into gender disparity in the law across the world is focused on Taiwan. The findings reveal that women are underrepresented at the top of the profession in…

Selected statistics regarding the state of commercial arbitration in Romania

The scope of this paper is to publicise a series of official statistics regarding institutional arbitration in Romania and setting aside proceedings resolved by Romanian courts. To the best of the author’s knowledge, information regarding the state and development of commercial arbitration in Romania is scarce, being mostly based on anecdotal evidence. For this reason, the author hopes that the statistics herein will be useful tools for practitioners and users of arbitration, and an incentive for similar efforts in the future.

Who Is A Friend? The Hong Kong Court of Final Appeal Delivers a Landmark Ruling

The Hong Kong Court of Final Appeal clarifies that who is considered a “friend” pursuant to the Prison Rules in respect of visitation rights for inmates awaiting trial and with the presumption of innocence, and whether a friend has to be someone with a personal or intimate relationship with the inmate.

International Human Rights Law and International Investment Law: Perspectives on International Legal Coherence

International human rights law (IHRL) and international investment law (IIL) are two influential subsets of public international law reflecting distinct purposes and historical evolutions. Nonetheless, the two subsets interact in the context of the investor–state dispute settlement system (ISDS), due to the rise in human rights claims under international investment agreements. This article appraises this interaction from the perspective of IHRL in light of the fragmentation of public international law. It argues for the need to recognise and assess concurrent international legal obligations systematically and coherently, suggesting that the principle of systemic integration could support the consideration of human rights treaty obligations in ISDS and promote legal accountability. Foreign direct investment and human rights are linked in complex and non-linear ways. Furthermore, a predictable, coherent and transparent legal approach is necessary to ensure that IIL respects substantive and procedural human rights. This may also bolster the legitimacy of ISDS by redressing perceived power imbalances. It may attenuate the potential negative externalities of granting broad, asymmetrical rights to investors without any concomitant obligations under investment treaties. This article concludes that to prevent accountability gaps, tribunals must recognise: (1) a home–host state continuum of human rights legal accountability; (2) home state obligations to protect against third party violations by its investors abroad; and (3) host state obligations to respect, protect and fulfil human rights.

Bullying and Sexual Harassment in the Legal Profession

The IBA's LPRU has published a report on the nature and prevalence of bullying and sexual harassment in the legal profession around the world, based on the findings of its extensive 2018 survey on the subject. It offers both observations and recommendations for action. The IBA hopes that the report will encourage law firms to revisit their policies and training for responding to and preventing bullying and harassment.

Artificial Intelligence and Arbitration: A US Perspective

As artificial intelligence (AI) continues to develop, complicated questions arise regarding the scope and role AI technologies play in legal practice. This article identifies and discusses challenges and opportunities that AI’s development pose to legal practice from a US perspective, focusing on AI’s applications to US dispute resolution generally, and to US arbitration in particular. It first discusses problems with defining AI, highlighting competing definitions that conceptualise AI from technical and social perspectives. It then discusses how AI tools currently influence, and will continue to influence, dispute resolution practice in the US. Next, it analyses key US legal considerations influencing how AI will be integrated into US dispute resolution systems, including trends such as how combining a developing technology with an evolving legal landscape is a recipe for uncertainty, and how the variety of relevant actors and sources of law in the US federal system generates complexity when adapting AI tools for use in arbitration. Additionally, it discusses how regulation does not happen in a vacuum, but is coloured by regulatory competition.

Soaring global construction costs under FIDIC: whose risk?

Canadian Civil Tax Disputes: Taxpayer Opportunities to Resolve Tax Issues

Civil tax disputes are primarily all about money. Occasionally, a Canadian Charter of Rights and Freedoms issue finds its way into the process of challenging the government’s taxpayer assessment, but it is not common. From the government’s perspective, a civil tax dispute generally involves a principled approach, applying both the language of the taxing statute and the relevant common law. More often than not, while a taxpayer seeks to comply with the law, the primary concern is how much will it cost; ‘What do I have to pay in tax, if anything?’ This dynamic sets the stage for the majority of civil tax disputes. No one needs to be told that challenging a tax dispute is an expensive, time-consuming and not entirely efficient process. In Canada, there are a few ways to resolve a tax dispute. This article provides the reader with an overview of the options to resolve Canadian tax disputes.