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A conversation with... John B Bellinger III

IBA 2020 Virtually Together - A conversation with...John B Bellinger III

Issue 5 – Friday 22 May 2020

The latest issue of the IBAHRI Covid-19 Human Rights Monitor addresses several key areas pertaining to the impact of the virus on vulnerable communities, including: how the pandemic disproportionately affects the position of adolescent girls; further restrictions on refugee camps; and developments on asylum procedures as lockdown measures begin to ease.

Issue 7 – Friday 5 June 2020

The latest HRI Covid-19 Human Rights Monitor covers: Freedom of assembly in Hong Kong and the US, tensions along state borders impacting migrant and refugee communities and the effect of inaccessible information on people with disabilities during the pandemic.

Article 13(b) of the 1980 Hague Convention and Covid-19

It is not uncommon for the Article 13(1)(b) exception, namely the ‘grave risk’ exception, to be used as a defence to object to the return of a child in 1980 Hague proceedings. While highly fact-specific, most common assertions relate to grave risk resulting from domestic violence or regional conflict.

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.

Day 5 of the 10th IBA London Finance and Capital Markets Virtual Tax Conference

Day 5 of the 10th IBA London Finance and Capital Markets Virtual Tax Conference, 10 February 2021, 1400-1600 GMT

Impact of Summary Disposition on International Arbitration: Quantitative Analysis of ICSID’s Rule 41(5) on 10th Anniversary

A decade of decisions issued under the summary disposition rules of the International Centre for Settlement of Investment Disputes (ICSID) permits, for the first time, at least an initial quantitative examination of the impact of summary disposition applications on international arbitration.

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.

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 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.

Using the practice of law to facilitate change and to accelerate a just transition

A session report from the joint session of the IBA Regional Fora at the IBA Annual Conference 2024 in Mexico City.

Observations on new trends in Chinese anti-corruption laws and practice

In the Chinese legal system, provisions addressing commercial bribery are dispersed across various legal instruments and judicial interpretations. Among the different legal authorities in China, the core provisions guiding anti-corruption can be found in the Anti-Unfair Competition Law and its draft Amendment (issued in 2022 and still open for public comment); the Criminal Law of China, along with its amendments; and the Supervision Law of China and its accompanying regulations for implementation.

Criminal proceedings against companies in Switzerland: still no deferred prosecution agreement

Criminal proceedings against companies in Switzerland: still no deferred prosecution agreement

Awarding costs and attorneys' fees: a Brazilian perspective

Arbitration is a well-established dispute resolution method in Brazil. According to the 2019 ICC Dispute Resolution Statistics, Brazil ranks third in the top-ten list of countries with most the parties involved in ICC arbitrations. Brazil also ranked sixth overall and remained the preferred seat within Latin America and the Caribbean with 24 cases.

Enforcement tools and approach in a new era

Increased economic volatility, healthcare emergencies and the rise of digital markets have all challenged the enforcement tools and approach of competition authorities globally. Successive economic shocks have required greater speed in responding and finding solutions to protect consumers. The Competition Commission of South Africa (CCSA) has used the active monitoring of critical markets, firm-level advocacy, guidance on the boundaries of acceptable conduct, accelerated investigations and consent agreements to correct behaviour rather than litigation. Examples are provided in price gouging, food markets, polymerase chain reaction (PCR) testing and airline exits. Speed is also considered important in digital markets, and given the ecosystems that characterise many digital markets, market inquiries are increasingly seen as a more effective tool to address features that adversely affect competition, along with tackling value chains in traditional markets.

The arbitration and insolvency collision: the Indian Perspective

By Alipak Bannerjee and Payel Chatterjee. The interplay of arbitration and insolvency has assumed greater significance in recent times with the evolution of new insolvency regime in India. With limited statutory guidance available on this subject, many arbitral proceedings have been stalled due to the onset of insolvency proceedings. While some jurisdictions have settled the position of law in this regard, India is relatively a new entrant to the list.

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

Valuing the ‘new oil’: the intersection of international data valuation practice and regulatory regimes

The financial valuation of data – an intangible asset – is an emerging area of increasing strategic significance. While many factors influence data value, this article explores the lesser known interplay between data regulation and data valuation, while also considering key requirements of the International Valuation Standards (IVS) and key value drivers of data. Such considerations may be pertinent for practitioners in transactional, insolvency, regulatory and disputes contexts.

The Covid-19 pandemic and the institution of ‘change of circumstances’: a Portuguese overview

The crisis caused by the Covid-19 pandemic has renewed interest in the need for legal and contractual mechanisms that promote the adjustment of contracts in the event of unforeseeable and abnormal circumstances.

SPECIAL EDITORIAL: What can construction contracting learn from Covid-19?

Before we try to predict medium-term and long-term changes to the construction sector that may result from Covid-19, we should first recognise the ways in which the industry and its clients have responded quickly and responsibly to the unprecedented challenges created by the pandemic.

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.

Session report two: IBA Annual Conference in Mexico City

A session report from the diversity and inclusion session at the IBA Annual Conference in Mexico City.

IBA European Regional Forum annual retreat

Over the course of 16–18 May this year, the IBA European Regional Forum Officers, Council Members and Advisory Board Members held their annual retreat in sunny Santorini under the hospitality of gracious host and colleague Panagiotis Drakopoulos and Drakopoulos law firm who ensured that the event, dubbed ‘THE BIG RETREAT’, went off without a hitch.

Seventh Annual IBA European Start-up Conference, Stockholm: report on panel session: ‘To list, to sell or to flip to the US: succesful exit methods in Europe’

A report on the panel session ‘To list, to sell or to flip to the US: sucessful exist methods in Europe’. Participants discussed recent challenges in the initial public offerings market, the ‘dual-track’ strategy and the role of legal advisors among other interesting points.

European Fashion and Luxury Law Conference summary

The European Fashion and Luxury Law Conference, meticulously organised by the European Regional Forum (ERF) of the International Bar Association (IBA) in Milan on 23 April 2024, was a resounding success. The event, which was fully booked, showcased a remarkable assembly of speakers, each highly esteemed within the industry. These speakers brought with them a wealth of knowledge and expertise, which they shared across a series of discussions and presentations.

Report from the IBA Automotive and Mobility Services Conference

We were happy to see 110 participants in Munich on 27 March, in the unique location of Upside East for a day of discussions concerning the very challenging times that the automotive industry is now facing. Attendees had a chance to ease into the conference at the welcome cocktail which took place the evening before and it was good to see many familiar faces showing that the conference is becoming a familiar item on the IBA calendar.