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IBAHRI Update - Edition 9 - 2020

Belarus, rule of law and human rights

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 9 – Friday 19 June 2020

The ninth issue of the IBAHRI Covid-19 Human Rights Monitor addresses several key areas pertaining to the impact of the virus on vulnerable communities, including an update on conditions in refugee camps, prisons and informal settlements. The consequences of the pandemic on disability rights and women's health are also covered.

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.

Statement on the sixth anniversary of the ‘709 Crackdown’ – 9 July 2021

Today, 9 July 2021, we, the undersigned organisations, take the opportunity to commemorate the sixth anniversary of the crackdown on Chinese lawyers and human rights defenders that occurred in the People’s Republic of China on 9 July 2015.

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

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.

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.

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.

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.

China's regulation of artificial intelligence – progress and challenges

Artificial intelligence (AI) is developing rapidly in China, with the number of patents and the size of the market both ranking highly among countries. However, this rapid development has posed new challenges to the legal framework, ethical norms and social governance, prompting China to continuously adjust and improve the relevant regulatory system.

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.

A framework for digital platform regulation

In rapid succession, a number of jurisdictions have moved away from focusing on antitrust enforcement to the proposed regulation of digital platforms. Ostensibly, the regulatory focus is about competition and potential concerns that traditional ex post enforcement may be ill-equipped to address the power of digital platforms. This article focuses on the realities of what platform regulation might mean, and how to better frame and structure the nature of appropriate regulation. This article first identifies a number of the different approaches to regulation that various jurisdictions have put forward, and then lays out six basic principles for platform regulation to help address some of the potential harms that such approaches may unwittingly be pursuing.

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.

International trade: fears grow for the future of the WTO as US changes tack

These are confusing times for those involved in international trade. One week, for example, President Trump describes the European Union as a ‘foe’ of the US because of ‘what they do to us in trade’. The next week, he has a meeting with Jean-Claude Juncker, the President of the European Commission, and welcomes a ‘new phase in the relationship’ with the EU on what he says is ‘a very big day for free and fair trade’.

Law reform: UK divorce regime ‘very troubling’ and lagging behind many jurisdictions

A controversial ruling by the UK Supreme Court that a woman must remain in an unhappy marriage until 2020 has sparked fresh calls for divorce law to be reformed. The case has highlighted the extent to which the UK is out of step with many other jurisdictions.

American presidency: executive orders

IBA Global Insight April/May 2017 - Serving as Deputy Assistant Attorney General under George W Bush, John Yoo authored the ‘Torture Memos’ that provided the legal basis for US detention and interrogation policies following 9/11. Here, he assesses Donald Trump’s early days in power and says the use of executive orders is damaging his presidency.

Introduction to the China International Commercial Court and Procedural Innovations in Aid of Arbitrations in Hong Kong

This article provides an overview of the China International Commercial Court (CICC) and its ‘one-stop’ platform for diversified international dispute resolution, as well as the new developments and benefits that this brings to users of arbitration in Hong Kong, in particular at the Hong Kong International Arbitration Centre (HKIAC). It begins by introducing the purpose of CICC’s establishment, the composition of the CICC, and the functions of the CICC. It then introduces the significance of the HKIAC’s inclusion into the CICC’s ‘one-stop’ platform, as the HKIAC is the only arbitral institution outside Mainland China to be so included. This article explains the existing mechanisms and practices through which arbitration users in an appropriate Hong Kong-seated arbitration may seek interim relief and enforcement of arbitral awards in Mainland China. Finally, this article explores the potential developments for users through the CICC’s new mechanisms and their likely impact.

A future bill to improve France’s anti-corruption framework

Five years on from the enactment of the Sapin 2 law, the ambition of which is to ‘bring French legislation to best European and international standards and to contribute to a positive image of France in the world’ , an evaluation of its effectiveness was carried out by a commission led by two Members of Parliament (MPs) Raphaël Gauvain and Olivier Marleix. The commission published a report listing 50 recommendations for improving France’s anti-corruption endeavours. The two MPs then decided to convert this into a draft bill which will consider some of the recommendations listed in the report. This draft bill, which has not yet been published, is currently under government review before its submission to parliament which is expected to take place in November 2021. The main areas for improvement identified by the MPs, which should be the subject of the draft bill, are outlined in this article.

Indian court interference in arbitration: interim measures and urgent reliefs

Indian jurisprudence on court interference in arbitration has gone through a long and painful, almost soul-searching journey. It started out with courts regularly interfering in arbitration proceedings which often made arbitrating in India ineffective as one party could at any time go to the court and agitate the same dispute, notwithstanding an exclusive contractual arbitration provision. Fortunately, common sense prevailed and successive cases have now curtailed interference to more traditional grounds such as public order or demonstrable bias. However, there is one area of interference – interim measures and urgent reliefs - which still retains quite a punch if a party to a contract intends to use dispute resolution as a strategic tool in a contractual relationship.

Disclosure of an Indian issuer’s potential FCPA violations: the implications for other Indian companies

Dr Reddy’s Laboratories Ltd (Dr Reddy’s), a large Indian pharmaceutical company, has American Depositary Receipts (ADRs) listed on the New York Stock Exchange and is an ‘issuer’ under the Foreign Corrupt Practices Act, 1977 (FCPA). In November 2020, Dr Reddy’s made a filing before the US Securities and Exchange Commission (SEC) stating that it had begun an investigation into an anonymous complaint alleging breaches of anti-corruption laws, specifically the FCPA.

Sustainability on steroids: solving for speed, while encouraging competition

This article explores the intersection of sustainability initiatives and competition law. It highlights the pressures on businesses to address the serious effects of climate change and the role of the Australian Competition and Consumer Commission in authorising sustainability collaborations that might otherwise breach competition laws. The authors discuss potential competition law risks, the legal framework and authorisation process in Australia, and compare international approaches. They also suggest improvements to streamline the authorisation process, such as clarifying guidance, fast-tracking certain applications and considering class exemptions to better facilitate sustainability agreements.

Avoiding gridlock: how Canada can use AI to expand and improve its hydroelectric future

The rapid evolution of artificial intelligence (AI) is affecting Canada’s energy sector. The advancement of new tools, particularly generative AI (Gen AI) resources, are forcing operators and governments to address legal gaps quickly and invest in new infrastructure across the hydroelectric industry. These changes are likely to result in significant benefits to the Canadian economy, driving billions of dollars in investment and ushering in a transformative shift in the workforce.

IBA European Regional Forum Diversity & Inclusion Survey report: Building active engagement with Diversity & Inclusion

A report on a survey created by the Diversity and Inclusion Working Party of the IBA European Regional Forum to understand how Diversity & Inclusion is perceived by European law firms and to try to learn from each other’s experience.

LGBTQIA+ rights in South Africa

The article explores how far South Africa has come in providing protection for LGBTQIA+ individuals. South Africa has made noteworthy progressions in LGBTQIA+ rights since 1996. From prohibiting discrimination on the basis of sexual orientation in the Constitution of the Republic of South Africa, to the numerous cases in which courts have taken steps to provide protection to same-sex life partners, and the birth of the Civil Union Act, which provides for same-sex partners to get married.

Compliance requirements and regulatory trends in cross-border transfers of personal information in China - China Working Group

By Charles (Xuchao) Feng. Compliance requirements and regulatory trends regarding the cross-border transfer of personal information in China

The Impact of ESG Considerations on Private Equity and Venture Capital Transactions: the Western Scenario

At a global level, environmental, social and governance (ESG) considerations continue to have increasing relevance in M&A transactions. Undoubtedly, ESG factors have become key drivers in private equity (PE) and venture capital (VC) deals because a target’s strong ESG performance can increase its long-term value. On the other hand, a target’s poor ESG performance can create reputational and financial risks for the buyer. Because of this, it is crucial for PE and VC funds to assess ESG factors and the target’s alignment with them. With its Action Plan on sustainable finance, the European Commission has been a first mover, imposing a series of obligations and standards that have a direct impact on the European capital market, but also indirectly on markets in non-EU countries such as the UK and the US. When PE and VC funds operate in the European market and elsewhere they must now meet strong sustainability standards and expectations to attract capital and raise funds from investors in the Western Hemisphere. Obviously, in the global PE and VC markets, EU PE and VC funds are more affected than non-EU funds; however, beyond regulatory obligations, the impact of ESG factors and risks on mainly PE transactions can be attested. With regard to VC deals, the impact of ESG risks and factors is currently variable depending mainly on the size of the deal and the sector of the target. Best practice in PE transactions isn’t reflected as frequently in VC transactions with the exception of scale-up rounds where the size of the target and the size of the investments (including A rounds) increasingly require an ESG-oriented approach. Given the relevance of EU regulation and the scope of its application, this analysis is based on the European perspective; however, it is also applicable to non-European funds, which often market their funds into the EU, for example US and UK funds, and is often used as the reference framework of a market standard that is being created in the PE and VC industry. Considering the wide range of implications of ESG factors in PE and VC transactions, this legal analysis is focused only on non-listed companies.

The enforceability of interim orders under Indian law

Interim measures in international arbitration are an important tool to protect the rights of parties, pending determination of the dispute by the arbitral tribunal. Therefore, the enforceability of interim orders granted by arbitral tribunals is critical.

Future of legal services and the implications for legal education and training

The delivery of legal services is going through rapid changes and there are various factors that contribute to these changes. They include technological innovation, changes in the business environment and globalisation. For lawyers to thrive despite the changes in the legal industry and in the delivery of legal services, they must develop new approaches.