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Issue 28 – Friday 18 December 2020

The 28th issue of the International Bar Association’s Human Rights Institute (IBAHRI) Covid-19 Human Rights Monitor includes increased calls to domestic violence hotlines during the pandemic, displaced refugees and violence against peaceful protestors.

Issue 22 – Friday 18 September 2020

The 22nd edition of the IBAHRI Covid Monitor includes coverage of the United Nations General Assembly resolution encouraging international cooperation, measures to combat rape in Liberia, LGBTQI+ rights in Southern Africa, Tajikistan and Iraq, effects of the fire at Moria refugee camp in Lesbos, reports of dangerous medical practices at an Immigration and Customs Enforcement facility in the US, homelessness and Covid-19 in the Middle East, Germany and Chile, and furlough schemes and disability.

Issue 18 – Friday 21 August 2020

The latest issue of the Monitor covers topics including Covid-19 outbreaks in refugee camps, prisons and detention centres. Also: the lasting impact of the pandemic on individuals with disabilities and on children without access to education.

Austrian Supreme Court’s decision in OGH 18 OCg 9/19a

On 15 January 2020 the Austrian Supreme Court considered whether a final arbitral award on its merits violated Austrian public policy (Case: OGH 18 OCg 9/19a). The underlying arbitration was conducted under the rules of the Vienna International Arbitral Centre (VIAC) with seat in Vienna.

Myanmar: International community weighs up further action, 18 months after military coup

Eighteen months after Myanmar’s military seized control and arrested then-leader Aung San Suu Kyi, alongside other members of the democratically-elected National Unity Government (NUG), the international community grapples with how to treat the country. As things stand, there’s no sign of an end to the junta’s bloody and contentious rule.

IBA to address wellbeing for law students in free 18 February webinar

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.

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.

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.

The law and economics doctrine and the alternative dispute resolution methods applied to construction agreements

Perspectives for a ‘right to be forgotten’ amid the reintegration of ex-guerrilla members in Colombia

One of the most important challenges after the signature of the peace process in Colombia with the FARC guerilla (the ‘Peace Process’) is how the government, and the society as a whole, can assure ex-guerrilla members that they will be able to reintegrate effectively into a digital driven society where information about their past, and about the crimes they committed, is just one click away.

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.

Ontario’s Immigrant Nominee Program

This article outlines the eligibility requirements and types of approvals made under Ontario’s Immigrant Nominee Program.

The European Commission took the wrong path in its quest to find its ‘holy grail’ merger control threshold (the CJEU’s Illumina/GRAIL Judgment)

The Illumina/GRAIL Judgment blocks the European Commission’s (the ‘Commission’s) attempt to create a new power under the European Union merger law (EUMR) to de facto call-in and review any transaction it considers potentially problematic. A power that was not based on any specific provision of the EUMR but on the Commission incentivising referrals from EU Member States on the basis of Article 22 of the EUMR, regardless of the solicited Member State(s) being competent to review the transaction under their national law. The Court of Justice of the European Union (CJEU) decided to block the Commission’s creation of such quasi-unlimited review discretion after an extensive review of the EU Merger Regulations’ travaux préparatoires, which clearly showed that legal certainty was one of the key objectives that the EU legislature sought to achieve through the adoption of the EU Merger Regulations, among others, by designing the EU Merger Regulations around a jurisdictional test based on objective, clear and predictable bright-line turnover thresholds.

Mind the third party in the gap: breach of contract, third-party liability - Litigation Committee newsletter article, April 2020

Mind the third party in the gap: breach of contract, third-party liability - Litigation Committee newsletter article, April 2020

Not the dawn of a new age: the EU Commission’s competition policy review

On 18 November 2021, the European Commission adopted a communication with a promising title: ‘A competition policy fit for new challenges’. The document covers all pillars of EU competition enforcement: antitrust law, merger control and state aid law. It also addresses new issues, such as the Digital Markets Act and the fight against third-country subsidies. However, although the Commission announced ‘a review of competition policy tools with unprecedented scope and ambition’, the 20-page paper does not reveal any ground-breaking new policies. Antitrust practitioners looking for a revolution might therefore be disappointed.

Is it time to end the Brazilian ban on multi-voting shares?

By Bruno Robert and Lucas Carneiro Gorgulho Mendes Barros. Is it time to end the Brazilian ban on multi-voting shares? - Securities Law Committee newsletter article, March 2020.

Case Comment: European Commission Fines Guess Over Anti-Competitive Agreements to Block Cross-Border Sales (Case AT.40428–Guess)

On 17 December 2018, the European Commission (the ‘Commission’) fined clothing company Guess €39.8m for practices that were held to constitute a single and continuous infringement of Article 101 of the Treaty of the Functioning of the European Union and of Article 53 of the Agreement of the European Economic Area. Its investigation into Guess was initiated on the back of the e-commerce sector inquiry and reflects the Commission’s resolve to step up enforcement activities in support of the digital single ma

Three stress tests for the future of European antitrust policy

European antitrust policy faces three critical stress tests as the new European Commission (2024–29) takes office. The first test challenges the EU’s Article 22 referral policy, which allows the Commission to review global mergers, raising concerns about extraterritoriality and legal principles. Predicted to fail, this test questions the Brussels Effect’s sustainability. The second test examines the Digital Markets Act’s (DMA) aim for regulatory dialogue over litigation in digital competition. Early investigations against major tech firms suggest a litigation-driven enforcement, risking the DMA’s intended regulatory approach. The third test evaluates artificial intelligence (AI) regulation, balancing competition and innovation. Success is possible if the EU adopts a practical, rational approach, recognising AI’s complex layers and promoting competition across the entire AI infrastructure. These stress tests present significant challenges and necessitate strategic responses to ensure robust and effective antitrust policies in Europe.

IBAHRI e ATI requerem que Brasil revogue o Decreto Presidencial que desmantela o Mecanismo Nacional de Prevenção e Combate à Tor

A Instituto de Direitos Humanos da Associação Internacional de Advogados (“IBAHRI”) e o Iniciativa Anti-tortura (“ATI”) expressam grande preocupação e condenam a decisão do Governo brasileiro de estabelecer severas limitações ao trabalho do Mecanismo Nacional de Prevenção e Combate à Tortura (“Mecanismo Nacional”). A medida representa uma perigosa redução da proteção dos indivíduos privados de liberdade.

Limits to directors’ and officers’ liability for fraud or corruption in Brazil: arbitration involving state-controlled entities

Brazil is currently focused on privatising state-controlled entities. While this may present great investment opportunities, given Brazil’s issues with corruption, it carries a considerable amount of risk. This article establishes practices and precautions to uphold investors’ interests in cases of corruption, fraud or mismanagement. In doing so, it will endeavour to compare the US and Brazil’s statutes of limitation rules, proceeding with a practical analysis of civil actions for damages filed by investo

How now, purple cow? What Fintechs can teach the legal profession about being remarkable

In an era of relentless innovation and disruption, are lawyers keeping pace with the rest of the world, or do they need to create purple cows? In this essay, submitted as part of the IBA Senior Lawyers’ and Young Lawyers’ Committee Scholarship, Stella Loong discusses what the legal profession can learn from Fintechs.

United States extraterritoriality: European Union sovereignty at stake

This article discusses the extraterritorial laws applied by the United States, and the European Union’s response to these laws, since the 1990s. The stakes of this dynamic are high, as extraterritorial laws put in question states’ sovereignty. The evolution of these relations is to be closely watched, as the European Union and its Member States are finding diversified and innovative ways to reaffirm their sovereignty in the face of US extraterritorial laws, even if it is has been with limited success.

Working hard or hardly working? Antitrust labour markets: an update from the United States

In this article, the authors trace the history, evolution and latest developments of the antitrust laws’ application to labour markets in the United States. Then, they describe common types of claims in labour markets cases, before analysing recent criminal and civil wage-fixing, no poach, and merger challenges. The authors conclude by providing actions companies should consider taking, as they seek to avoid finding themselves as a defendant in an antitrust–labour markets case.

An Analysis of the Broader Implications of the European Commission’s International Skating Union Case

On 8 December 2017, the European Commission decided that the International Skating Union’s (ISU) Eligibility Rules breached EU competition law. The rules provided that an athlete could be sanctioned for participating in an event not authorised by the ISU. The Commission thus examined whether the rules unlawfully restrict competition under Article 101 of the Treaty on the Functioning of the European Union (TFEU) by establishing a pre-authorisation procedure for third-party organisers and imposing sanctions

The impact of armed conflicts on commercial disputes: recent developments in France

Armed conflicts generate numerous unforeseen direct and indirect consequences, such as the surge in energy prices. Such consequences disrupt the performance of commercial contracts, for instance by making it excessively onerous for one party. The recent reform of French contract law added two mechanisms to the French Civil Code which may prove relevant in such a context. Their use is however strictly framed by French courts.

The aircraft financing market after Covid-19

Aviation has been one of the most affected business sectors since Covid-19 started spreading around the world. The initial response of most countries to this pandemic has been to close their borders and restrict travel. Consequently, global air traffic dropped by 73.7 per cent in April 2020, compared to the previous year.

The Why and How of the New European Union Prospectus Regulation

The majority of the new European Union (EU) Prospectus Regulation will become applicable in July 2019. As part of the wider Capital Markets Union initiative, the new Prospectus Regulation aims to reduce costs for issuers in accessing European capital markets, facilitate cross-border investments in the EU and to build a framework resulting in EU-wide risk-sharing.

Governance in the Digital Economy: the Challenge of Governing Algorithms

The ‘Fourth Industrial Revolution’, as coined by Klaus Schwab, creates new governance challenges. We are immersed in a digital transformation triggered by the exponential effect of emerging technologies that are changing the world: changing the way we communicate, socialise, entertain, work, produce, and provide services. Among the exponential technologies, AI (which can be defined as a collection of technologies that combines data, algorithms, and computing power) is one of the most important applications of the data economy.