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Issue 2 – Thursday 30 April 2020

The second issue of the IBAHRI Covid-19 Human Rights Monitor addresses global issues including femicide, transphobia, unsanitary refugee camps, overcrowded prisons and the neglect of disability rights.

30 jurisdictions participate in the first global IBA Women’s Day

On International Women’s Day 2023, the President of the International Bar Association (IBA), Almudena Arpón de Mendívil Aldama, announced the launch of the IBA Women’s Day; a worldwide event in celebration of women legal professionals. This inaugural event is aimed at guiding the younger generation of...

30-year sentence for Congolese warlord marks turning point for ICC

The 30-year sentence handed down to former Congolese general Bosco Ntaganda in November marked a significant triumph for the International Criminal Court (ICC) following a period of increasingly strong criticism.

30 jurisdicciones participan en el primer Día de la Mujer de la IBA

En el Día Internacional de la Mujer 2023, la Presidenta de la International Bar Association (IBA), Almudena Arpón de Mendívil Aldama, ha anunciado el lanzamiento del Día de la Mujer de la IBA, una celebración mundial de las mujeres profesionales del derecho. Este evento tiene como objetivo inspirar y orientar...

International Bar Association Conference: Access to Justice and Legal Aid Committee Session 30 October 2023

A report on the Access to Justice and Legal Aid Committee session at the 2023 IBA Annual Conference in Paris.

Anti-Corruption Committee sessions at the IBA Annual Conference, Miami, 30 October to 4 November 2022

This report outlines some of the topics discussed by panellists at sessions organised by the Anti-Corruption Committee at the IBA Annual Conference, Miami, 2022.

Psychological health, safety and wellbeing: reshaping the working environment of the European law firm – IBA Annual Conference Paris, 30 October 2023

The European Regional Forum (ERF), in particular its Professional Wellbeing Working Party (PWWP), organised a session on lawyers' wellbeing and ways in which we can make our law firms become better working environments. This session was additionally organised with the support of the IBA’s Presidential Task Force on Mental Health and wellbeing and the Professional Ethics Committee; it took place at the IBA 2023 Annual Conference in Paris.

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

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.

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 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.

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.

Spain – getting ready for the next steps in space exploration

This article analyses Spain's progress in developing a strategy for competitiveness in aerospace matters, such as the creation of a National Space Agency to represent Spain before the international community, the speed and urgency in the incorporation procedure of the Agency, drawing up its by-laws, as well as the drafting of a Law on Outer Space Activities, along the lines of its neighboring countries. We also describe the first steps taken by the Spanish Space Agency, including the adhesion to the Artemis Accords, and the main space initiatives carried out by the private space sector in Spain.

The (in)feasibility of using precedents as a tool to increase consistency in international arbitration

The article begins by introducing the problem of inconsistency and contradictory decisions within the framework of international commercial and investment arbitration. Then, starting from the premises surrounding the use of legal precedents in both national and international contexts, the article considers the possibility of having a precedent value rule as a tool to increase predictability and consistency in international arbitration. After considering the reasons why such a rule does not and could not exist and why it cannot be applied to international arbitration as a whole, the article discusses the options available to increase predictability and consistency in the international arbitration system.

Arbitration is the new black: the Ukrainian perspective

By Oksana Karel and Daryna Hrebeniuk. Arbitration is the new black: the Ukrainian perspective

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.

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.

Ratification procedure for international conventions in Brazil

Although the ratification procedure for international conventions is a matter regulated in accordance with the legal system of each country, there are, as a rule, two models of procedures for carrying out the analysis of international conventions with a view to their subsequent ratification.

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.

Looking for Venture Debt? What to Expect

Venture debt is an attractive alternative for startups that need to raise funds to expand their growth. Moving away from venture capital and traditional loan lending, venture debt is composed of different terms and standard provisions that allow it to work in the venture ecosystem. So how do these terms work and what are the items that a loan agreement will include as standards of the industry? This article will first consider structural terms, without which a venture debt agreement would not exist. These are the parties involved (lender and borrower), the amount lent (which varies depending on the lender), the term of the loan (usually 36 to 48 months) and the interest rate (which is both a structural term and a pricing term). Secondly, the article looks at pricing terms, which include all elements of payment from the company to the venture lender. These include interest rates, additional fees such as commitment fees, prepayment fees and other kinds of fees, collateral (mainly intellectual property and/or an all-asset lien) and warrants (an equity interest on the company). Finally, the article looks at legal terms, which include additional obligations and provisions to avoid or engage the borrower in actions that benefit the loan. These include standard provisions such as closing conditions, representations and warranties, and covenants (either positive, negative and, less commonly, financial covenants), as well as other provisions, such as the material adverse change (MAC) clause, the investor abandonment clause and the event of default provision. These terms are particularly a matter of negotiation in a venture debt deal, and in any case each agreement will find a balance for the lender and borrower for venture debt to work in the specific context.

Should prenuptial and postnuptial agreements be treated as binding contracts in all jurisdictions?

Should prenuptial and postnuptial agreements be treated as binding contracts in all jurisdictions? Natalia Wielgosinska Law Firm of Attorney-at-Law Natalia Wielgosinska, Poland

UK Modern Slavery Act failings point to need for global action on slavery

In 2015, the UK became the first country to pass legislation to combat modern slavery. Yet, three years later, the Modern Slavery Act continues to attract criticism as other countries step up their efforts to help the estimated 40 million people worldwide that are affected.

Climate crisis: ‘right to healthy environment’ fills causal gap in climate litigation

In February, the US Department of Justice (DoJ) was denied a stay in the long-running climate case, Juliana v US. In the case, 21 youth plaintiffs are arguing that the federal government violated their Fifth Amendment constitutional right ‘to life, liberty and property’. It’s the latest interim proceeding in the claim, which has been running since 2015 and which the DoJ has argued should be dismissed.

Defective medical devices: the ‘defence of regulatory compliance’ under Swiss law – does it need to be reassessed?

Against the background of the stricter regulation of medical devices under the revised Swiss Medical Devices Ordinance (MedDO) and the EU Medical Devices Regulation (MDR), the question has arisen as to whether the defence of regulatory compliance, or at least the weighting of this argument of the manufacturer in product liability proceedings, needs reassessment. The author of this article argues in favour of such a stronger weighting if the product in question is an MDR medical device or another therapeutic product.

Permitted foreign investigative activities (and powers of investigators in general) in Luxembourg, and legal privilege

Luxembourg has long been (wrongly) seen and painted by its opponents as an opaque jurisdiction where investigations rarely yield results. While this reputation may not have been totally undeserved in the last century (even if that is debatable), since the early 2000s, Luxembourg has seriously tightened its framework and should now definitely lose this reputation.

Book Review - Abuse of Rights in International Arbitration

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.

Arbitrating Intellectual Property Disputes in Nigeria: Lessons from Hong Kong and Singapore

Arbitration is now becoming globally recognised as the preferred method for resolving technology disputes. In this article, we examine the position in Nigeria, while considering the existing practices in Hong Kong and Singapore.

Video conferencing (Vcon) and international arbitration: Zooming into data privacy, cybersecurity and technology issues in early procedural orders

By Robin Callender Smith. International arbitration, as it matures in a world of rapid digital and technological advances, inevitably throws up myriad novel issues and problems. Video conferencing (Vcon) is part of the technological and procedural climate change which is rapidly being processed and understood. The issues of data privacy, cybersecurity and technology need to be addressed as early and comprehensively as possible in procedural orders, given the extra impetus for Vcon in the context of Covid-19.

Overriding importance of legal privilege reconfirmed by Belgian Constitutional Court in DAC-6 case

Legal professional privilege is not to be tampered with. It is a principle of such a fundamental nature that it imposes itself even on legislators. This is, in essence, the Belgian Constitutional Court’s message in its judgment of 20 July 2023 in a matter initiated by the Order of Flemish Bars (Orde van Vlaamse Balies or OVB) and other petitioners against the Flemish regional implementation decree of the DAC-6 Directive, as this article explains.