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This morning’s session on theInternet of Things

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Africa’s infrastructure shortage:what needs to change

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Genocide case law is incoherent andsecuring a conviction is increasinglydifficult, according to a panel on the

subject yesterday morning.The legal definition of genocide as a crime

was coined by Ralph Lemkin followingWorld War II, and ratified by the UN generalassembly though the Convention on the Pre-vention and Punishment of the Crime ofGenocide in 1951.

The definition was a legacy of the Nurem-berg trials into the Holocaust, which alsoprompted the UN to enact so-called crimesagainst humanity into legislation as it soughtto deter future acts of genocide.

Since Nuremberg, a number of interna-tional tribunals have been established to de-cide whether acts of genocide have beenperpetrated. Among the most prominent caseswere those for individuals accused of involve-ment in massacres carried out in the Gulf War,Rwanda and the former Yugoslavia.

Discussing the case law that has emergedfrom these trials, the panelists on ‘Genocide:national, ethnical, racial, religious groups –is the 1948 definition in need of reform orwould it be too dangerous to change?’ agreedthat some decisions have been confusing andhave engendered an inconsistent body of law.

Professor William Schabas of MiddlesexUniversity cited the example of trials con-cerning events in the Bosnian war in the1990s as an example of contrasting decisionsthat have been made.

In the trial that followed the war, it wasnot deemed that the mass murder of BosnianMuslims by Bosnian Serbs was genocide.However, one event, a massacre in Sre-brenica where around 8,000 men and boyswere slaughtered, was ruled an act of geno-cide. That stayed with the case law, and wasendorsed by the International Court of Jus-tice in 2007.

“We’re left with incoherent law. It’s notlogical to look at that conflict in Bosnia andconclude that wasn’t genocide apart fromthose five days in Srebrenica,” Schabas ex-plained. The law will remain unless it is over-

turned at appeal, and one hearing continuestoday. “If this [a successful appeal] were tohappen, we will have an even more incoher-ent body of case law,” Schabas added.

Difficult to proveSince it became a defined crime, convictionsof genocide have been relatively few becauseit is so difficult to prove, particularly whencompared to a crime against humanity.

In terms of a hierarchy of severity of in-ternational crimes, genocide is regarded asthe world’s most heinous, with crimesagainst humanity second, and war crimestaking third position in the eyes of courtsand plaintiffs.

Yet the results of a conviction are similar,and for prosecutors, there are a number ofadditional elements that must be proved tosecure a conviction for genocide that are notnecessary when the charge is a crime againsthumanity.

While the latter is defined as a widespreadsystematic attack against a civilian popula-tion, in the case of genocide, the intent to de-stroy, in whole or in part, a national,ethnical, racial or religious group must bedemonstrated. One of the key differentia-tors, and also the most difficult element toprove, is the “specific intent of the individ-ual,” said Gregory Kehoe, a partner atGreenberg Traurig and former prosecutorwith US Department of Justice.

Considering the challenges of securing averdict of genocide, the benefit of seekingone over a perceived lesser charge of a crimeagainst humanity has little merit, the panel-lists agreed.

Kehoe, who was part of the team prose-cuting Saddam Hussein for his actions inthe Gulf during the 1990s, questionedwhether the difference was largely seman-tic. “If there are 250,000 civilians killed,which is approximately what we awaredealing in Kurdistan when we put the casetogether against Saddam, does it reallymatter to those victims if it’s genocide or acrime against humanity?”

#ibaviennaJ O I N U S O N T W I T T E R

S P O N S O R E D B Y

Defining genocide

All roads lead to RussiaAnders Fogh Rasmussen in discussion with Todd Benjamin

Gregory Kehoe, partner at GreenbergTraurig and former prosecutor with USDepartment of Justice, and WilliamSchabas of Middlesex University

News V I E NNA2 IBA Daily News

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Failure to address the humanrights issues posed by cli-mate change will have dev-

astating consequences for millions. That was the message at yester-

day morning’s session ‘Preventingclimate chaos – the latest judicial,legal and policy developments…’in which the IBA’s presidentialtaskforce on the topic presentedthe findings of its latest report andexplored the role of law in combat-ing climate change.

Most often it is the poorest coun-tries that are the least responsible forclimate change that bear the bruntof wealthier countries’ actions.Working with those countries is notonly a matter of justice, but a matterof law, said Stephen Humphreys of

the London School of Economics,who is academic advisor to the task-force group on adaptation.

Climate change will ultimatelymake poverty reduction harder,said Professor Javier de Cendra deLarragán of IE Law School inMadrid. The taskforce seeks topinpoint ways in which the lawcan help, as well as where certainlaws potentially hinder progress.Focussing on promoting tradewithout abandoning climate stan-dards, they are looking at interna-tional agreements such as theTransatlantic Trade and Invest-ment Partnership (TTIP) and theTrans-Pacific Partnership (TPP).

The revolutionary new report, ti-tled ‘Achieving Justice and Human

Rights in an Era of Climate Disrup-tion’ made more than 50 recom-mendations to governments. Whilearound 90 countries have imple-mented environmental laws, whichthe report commends, it urges moreto follow suit. Its purpose is to pro-vide a menu of provisions fromwhich domestic jurisdictions can se-lect the more appropriate recom-mendations, said David Estrin ofthe International Law ResearchProgramme and co-chair of the IBAModel Climate Change Remediesworking group.

It also identifies three key areasfor the adaptation group to focuson: climate displacement, adapta-tion technology and food security.

The new normalThe aftermath of Cyclone Sidrwhich hit Bangladesh in 2007,killing thousands and disruptinghundreds of thousands of businessesand jobs provides just one exampleof climate displacement. Whenemergency aid inevitably ran out,thousands in more remote areas hadno choice but to leave their homesin search of food and work.

People would more often thannot prefer to stay, said MichelleLeighton, chief of the InternationalMigration Branch at the Interna-tional Labour Organisation in

Geneva, but rebuilding is costlyand takes time.

There are currently no legal in-struments to assist in climatechange migration. Existing laws arepoorly suited, said Corina Gugler ofDebevoise & Plimpton, secretary tothe adaptation working group.

Climate displacement is not lim-ited solely to natural disasters. Ris-ing sea levels due to polar ice capmelting and seawater temperatureincreasing has already seen manycommunities move further inland.And it can only continue: a 2007report by the UN Intergovernmen-tal Panel on Climate Change(IPCC) said that sea levels werelikely to rise between 18cm and59cm this century.

Adaptation technology is espe-cially important in that it can pre-vent the need for climatedisplacement. “Climate migrationreally is the adaptation strategy oflast resort,” said Humphreys.

The scope of needs-based tech-nology transfer includes the instal-lation of advanced equipment suchas desalination plants, but is alsoabout knowledge-sharing as tohow to handle the new technolo-gies. This is one area where legalbarriers come in, as intellectualproperty (IP) protection can blockthe transfer in the first place.

Food security is the biggestthreat to rural areas of Africa andAsia. The IPCC says that even min-imal warming in dry and tropicalregions reduces yield, but in reality,climate change is just one of manythreats to access to food.

Land grabs – large-scale agricul-tural land acquisitions, 70% ofwhich are concentrated in sub-Sa-haran Africa and often initiated bywealthy foreign investors and cor-porates – are blocking access tofood in some local communities.

The right to food – a humanright – stipulates that if people aredeprived of food for reasons be-yond their control, including aftera natural disaster, the governmentis required to provide it directly.

Panelists explained that causa-tion is difficult to identify. It isnearly impossible to pinpoint theexact cause of a rise in temperatureor natural disaster, let alone identifya perpetrator. Handling multipleclaims from various parties, as wellas managing the cost – many ofthose affected simply cannot affordlitigation – are further obstacles.

“Fundamentally, the interna-tional legal framework is not de-signed to address this wicked issueof climate change,” said Estrin.

Earlier this year, however, Ur-genda Foundation v The State ofthe Netherlands saw a civilian plat-form take the Dutch governmentto court on behalf of 886 peoplefor failing to meet its commitmentof reducing emissions by 25 per-cent. Baroness Helena KennedyQC, who co-chaired the session,said that this groundbreaking ver-dict in the first successful climatenegligence case shows exactly howthe law can be used as one of thetools for fighting climate change.

Key takeawaysClimate change is making•

poverty reduction more difficultas it blocks access to food, andnatural disasters drive entirecommunities from their homes;Comprehensive laws protect-•

ing against climate change –particularly violations of humanrights – are lacking.

How climatechange lawmust evolve

Javier de Cendra de Larragán of IE Law School in Madrid and Baroness Helena Kennedy QC

Stephen Humphreys of theLondon School of Economics

www.iflr.com NewsThursday, 8th October 2015 3

Law firms must better utilisesocial media in today’s digi-tal age. Businesses, espe-

cially law firms, need to push theironline presence further to harnessthe marketing potential at their fin-gertips, according to panelists atyesterday’s session.

The majority of those attendingthis week’s conference haveLinkedIn profiles; it’s undoubtedlyan excellent tool for the business oflaw. But are the lawyers of the dig-ital age using the internet to its fullpotential, or is passive social mediaactivity limiting its value as a mar-keting tool?

In yesterday’s ‘Business Devel-opment comme il faut or how so-cial media and new technologies

can help you step up your game,’ apanel of experts discussed howsmall firms can improve online vis-ibility, while expanding their busi-ness in the process.

Speaker Joanna Michaels, a so-cial media expert from Beyond So-cial Buzz, a social media marketingagency based in London, suggestedestablishing a clear goal for a socialnetworking strategy early on.

The aim, she said, should be tominimise damage, while finding away to pro-actively encourage pos-itive word of mouth. “We mustembrace social media, and use it tobuild a reputation and make morebusiness.” According to CeylinBeyli of CBL Law Office in Istan-bul, the key to social media success

is to put yourself out there, toclearly explain to your clients thatyou provide a good service: “It isimportant for a business to be vis-ible, available and approachable.”

Outlining the benefits of otherlesser-used social media platforms,Google Plus and Pinterest, thepanel discussed the importance oflawyers not limiting themselves to

an inactive LinkedIn account. It isimportant when using social mediato be where the conversation is,and to cast a wide net.

Spoilt for choiceHowever, being drowned in choicecan be a problem too. How can afirm be sure that they are employ-ing the right platform? The unani-mous message from the panel wasto follow your clients. “You shouldbe where your customers are,” saidMichaels. “Establish where theyare or you won’t be talking tomany people.”

Michaels also outlined her strat-egy for being a ‘social media rock-star’. When using social media, itis important to share and be socia-ble; to show trust and allow clientrelationships to breed; to add valuewith your content and let yourclient know they are on your mind.Following these principles will pro-mote your firm positively to a cap-tive, worldwide audience.

A member of the audiencevoiced his concern with this con-cept; law by definition is a veryconservative field. “We represent a

professional type of work. Lawyersshould not be rock stars.” A validprotestation, it is important to stayprofessional, adhere the risks of so-cial media, and always offer fulldisclosure, agreed the panel. Los-ing face online can be just as dam-aging as in person, if not more.

Prolific social media user ItzikAmiel of international expansionspecialist EyeRon Group, high-lighted another concern of the mis-use of social media. One firm hadtweeted the message, ‘please canyou give us some business’, severalthousand times. An uninspired prac-tice he suggested – and far moredamaging than it was practical.

With correct practice, socialmedia can be an extremely impor-tant part of a law firm’s marketingstrategy. A final message in yester-day’s session was the importance ofquality over quantity. Amassing10,000 irrelevant followers is notas beneficial as having a hundredrelevant ones. Social media is notjust a numbers game; it is about therelevance to your business, andmost importantly, relevance toyour clients.

Lost in a digitalparadise

JoannaMichaels

News V I E NNA4 IBA Daily News

The US Supreme Court deci-sion in June 2015 for samesex marriage and a German

Federal Court of Justice ruling relat-ing to surrogacy in December 2014are two recent cases that have al-lowed many more people to have afamily by law. But as speakers in thismorning’s session will explain, muchwork remains to be done. Follow-onlegislation, new forward-lookinglaws and the re-writing of outdateddiscriminatory statutes are neededto extend the right to more people.

Huge inroads have been madein Argentina over recent years topromote gender equality and ex-tend the right to a family to moresections of society.

Existing legislation provides ma-ternity leave for mothers to one ofthe fathers in a homosexual rela-tionship and supports commercialsurrogacy for gay male couples, full

public access to IVF and same sexmarriages with full adoption rights.The last was passed in 2010 andmade Argentina the tenth countryin the world to legislate for samesex marriages.

“Argentina has perhaps becomethe world leader on issues of gen-der equality,” says Federico Godoy,partner in Argentinian law firmBeretta Godoy, session co-chairand co-chair of the IBA’s Lesbian,Gay, Bisexual, Transgender and In-tersex Law Committee, addingthat these laws are “wonderful andnecessary to recognise the rights oftransgender persons”.

According to Steve Weiner, chairof Mintz Levin’s Health Law Prac-tice and co-chair of today’s session,at the core of the development in theright to have a family is the evolu-tion of same sex marriage. “We arefocussing on the legal issues around

the family as a right and looking atthe variety of emerging issues con-cerning this right,” says Weiner. “Byand large one of the main issuesaround the world has been the samesex marriage question.”

In June 2015 the US SupremeCourt decision in Obergefell vsHodges ruled for same sex mar-riage as a federal right and in sodoing, says Weiner, made it possi-ble to solve a whole range of familyissues in law. From an advocacyperspective if a culturally hege-monic superpower like the US canlegalise same-sex marriage, otherjurisdictions will surely follow,”says Godoy.

Argentina and the US still remainan exception, globally speaking. As

of 2015, only 18 countries legallyrecognised same sex marriage.

Beyond same sex marriageAlthough the question of same sexmarriage is key in the furthering ofthe right to a family, much needs tobe done in terms of follow-on laws,

new laws in areas relating to genderrecognition and equality, new legis-lation to clarify positions regardingalternative ways of having a familyand clearing old discriminatory laws.

Matthias Stupp, corporate part-ner in White & Case, Hamburg,and Leonardo Raznovich, formerhead of law and principal lecturerin law at Canterbury ChristChurch University (CCCU), will intheir presentations draw from legaland personal experience to explorethe divergent approaches to surro-gacy, with a particular focus on theDecember 2014 decision by theGerman Federal Court of Justice(Bundesgerichtshof) to recognise aUS judgment granting legal parent-hood to the parents of a child bornas a result of a surrogacy arrange-ment, and the thorny issue ofBritish colonial laws. “I expect thatthe discriminatory stance taken byan external territory of the UK onthe immigration rights of homo-sexual couples would surprisemany,” says Godoy.

According to Godoy one of themany drivers behind the develop-ments in Argentina was MaríaRachid, a City of Buenos Airescouncillor who “pioneered severalworld-leading gender equality lawsthat have been adopted at a nationallevel”. Rachid will discuss genderrights from an advocacy perspective.

Finally, Sanford Bernardo, co-founder of Northeast Assisted Fer-tility Group and a specialist in

surrogate parenting and third partyfamily building, will explore non-convention technologies for fami-lies and voice the case of LGBTIcommunity members who want tohave a family.

“I would like for this session toform part of the groundwork forpeople to stop looking at theLGBTI community by reference toits constituent L-G-B-T-I people,and start just treating them as peo-ple with the same rights as every-one else”, says Godoy, hoping thatthose from “jurisdictions wherefew rights have been recognised forthe LGBTI community will takethe message that this is not OK”.

LGBTI rights:breakingnew ground

SESSION

Having a family: ahuman right

COMMITTEE

Lesbian, Gay, Bisexual,Transgender and IntersexLaw Committee,Healthcare and LifeSciences Law Committee,IBA’s Human RightsInstitute

TIME/VENUE

Today, 9:30am –12:30pm,Room 2.95

The environment facilitates,but also constrains. Africancountries have long used

natural resources to fuel develop-ment, yet in an age of growing de-bate about what really constitutessustainable development, commod-ity slumps and emerging technolo-gies in energy and agriculture, manycountries face complicated questionsabout their development models.

African jurisdictions have vastnatural resources which provide atried and tested economic model fordevelopment. According to theAfrican Development Bank (AfDB),in 2012 natural resources ac-counted for 77% of total exportsand 42% of government revenues,while mining, oil and gas accountedfor 28% of the continent’s GDP.

The numbers are far more dra-matic in countries such as Nigeria,Zambia or Angola for instance,where the dichotomy becomesblurred. “South Africa relies heavilyon extractive industries and on ex-porting its raw materials [but] this ineffect has limited the country’s de-velopment”, according to OlufunmiOluyede, co-chair of the session andpartner in Nigerian firm TRLPLAW.“While in Nigeria the governmenthas relied continually on exportingpetroleum and has basically aban-

doned other natural resources thatcould also bring in revenue. Theconsequences have been traumatic.”

Existing extractive models alsopose daunting sustainability ques-tions, in terms of sustainable eco-nomic development to all sectionsof society and sustainable environ-mental and social practices.

The list of environmental andsocial damage is long: fisherman inthe Niger Delta suing Shell Petro-leum for environmental damage;litigation against Anglo Americanon behalf of thousands of SouthAfrican gold miners suffering fromsilicosis; claims against Trafiguraover the dumping of toxic waste inIvory Coast; and Zambian villagerstaking Vedanta Resources to courtfor allegedly spilling sulphuric acidinto the water sources. Lucrative re-sources and the development theypromise also threaten protectedareas; take the oil exploration li-censes granted on land crossing intoVirunga National Park, a UNESCOworld heritage site in the Demo-cratic Republic of Congo.

Nigeria has the highest primaryforests deforestation rate and 81%of its old growth forests disap-peared in 15 years. Ethiopia haslost 98% of its forests in the last 50years and climate change threatens

to compound related issues ofdrought and flooding.

Fruits of growthSustainable growth in itself is a nu-anced and complex question, al-though intimately tied to theabove. According to the African2015 Economic Outlook (pro-duced by the AfDB, OECD andUNDP): ‘political and social stabil-ity are prerequisites for economicgrowth. But stability also dependson how the fruits of growth areshared. In this respect manyAfrican countries rank poorly’.

Oluyede points to positive initia-tives that buck this trend, includingLagos State programmes ‘Opera-tion Green Lagos’ and ‘Greeningand Beautification Programme’,which, among other things, pro-mote bio-diversity. “This projectwas so successful that within fiveyears, the 4.3 million trees planted

at the outset have begun to improvethe flood situation in Lagos state,”says Oluyede. Renewable energyprogrammes in Kenya and Ugandaand the ‘Organic Agriculture’ ini-tiative also come to mind.

Developing a strategyThis afternoon’s session will have adistinct Sub-Saharan focus withforeign perspectives. The sessionco-chairs are Oluyede and Barn-abas Tumusingize, senior partnerof Sebalu & Lule Advocates inUganda, who has deep experiencein natural resource projects.

The speakers include Israel Aye,from Sterling Partnership in Lagos (afirm which has recently handled oilspillage claims against an interna-tional oil company), who will assessNigeria’s interest in the oil industryas a catalyst for development, andSternford Moyo, from Zimbabwefirm Scanlen & Holderness, will ex-plore Community Share OwnershipSchemes in the extractive industries.

From South African firms Web-ber Wentzel and Werksmans Attor-neys, Peter Leon and Pieter Steynwill examine the South African Pro-motion and Protection of Invest-ment Bill, mineral and petroleumregulation in developing countries,black economic empowerment and

indigenisation laws, and foreign in-vestment regulations.

From outside Africa are IgnacioRandle from Estudio Randle inBuenos Aires, Argentina, who willanalyse how proper legal incentiveslead to sustainable development forthe community. Lastly, Laura VanDer Meer, from Kelley Drye &Warren in Brussels will exploreagricultural biotechnology as partof sustainable development, theevolution in Africa of policies thatopen access to biotechnology forthe benefit of farmers and localcommunities.

SESSION

Sustaining developmentand developingsustainability: the Africanexperience, challengesand prospects

COMMITTEE

African Regional Forum,Mining Law Committee

TIME/VENUE

Today, 2:30am –5:30pm, Hall E2

Africa’s sustainability challenge

Olufunmi Oluyede

Steve Weiner

www.iflr.com NewsThursday, 8th October 2015 5

Being connected while re-maining protected is becom-ing increasingly complicated,

as the growth of smart technologyhas proven.

Recent instances where vehicles,and even smart LED lightbulbs,have been remotely hacked andcontrolled have brought the issuefurther into the public’s gaze.

The Internet of Things (IoT), aterm coined in 1999, is at the coreof this morning’s session, which issplit in two and features speakersfrom Microsoft, Qualcomm andJohn Deere alongside a panel oftech lawyers and professors fromthe US, UK, Italy and Belgium.

The term IoT describes thegrowing network of ‘smart’ objectsthat can communicate with eachother and complete tasks withoutany human involvement; it is a de-velopment of machine-to-machinetechnology and is reliant on the in-ternet for remote communication.

The IoT is pithily summed upas coffee machines talking toalarm clocks, heating systemstalking with motion sensors orGlasgow’s plan to put sensors onstreetlights and traffic lights thatintegrate with CCTV. But the

characterisation disguises thecomplexities behind the develop-ment and hides the huge amountof information and data beingtransmitted.

A study by tech advisory firmGartner noted that there will be 4.9billion smart objects by the end of2015, 30% more than 2014, and 26billion by 2020, with about half inthe consumer sector and the biggestproportion in so-called smart homes.

Although seemingly innocuoushome consumer products will bethe most visible face of the IoT andissues such as privacy and dataprotection are key, the concernsquickly escalate at the prospect ofsuch developments in the health-care sector, for example.

Even with more obvious con-sumer products such as lightbulbsand cars, experiments have shownthat they can be hacked remotelyand in one case hackers brought aJeep Cheroke to a stop on a high-way.

The session, in this respect,will ask how data used in the IoTis regulated and processed andwhat sort of legal framework andregulatory infrastructure will beat play. Speakers Hartmut Seibel,general counsel at the EuropeanPayments Council in Brussels andRonald Zink from John Deere &Company in Iowa, US, will ex-plore IoT in their environments.

Developing case lawThe IoT and other technologicaldevelopments are placing a com-plex burden on the world of regu-lators and the legal community,particularly when it comes to theissue of copyright and patents, in-dustry standards, identificationand authentification and limitationof liability issues.

A recent headline case concern-ing programmers saw Oracle con-front Google over the API. Howapplicability of patent and copy-right law to APIs (application pro-gramming interfaces), which allowdifferent computer programs to

communicate with each other. Bothsides of the argument believe theyare fighting for entrepreneurs, andthe US court ruling broadly infavour of Oracle, has surprisedmany programmers and developers.

In the first session Jim Bev-eridge, senior director of Interna-tional Technology Policy forMicrosoft and part of Microsoft’sAdvanced Strategy and ResearchGroup, will be joined by RonaldZink, director of on-board applica-tions at John Deere & Companyand former in-house counsel withMicrosoft, and Dahlia Kownator,senior manager for GovernmentAffairs at Qualcomm Europe.They will explore trends, issuesstandards, antitrust and industryapplications.

The second session will hearfrom Adam Chernichaw, partner inWhite & Case, New York, a spe-cialist in patent and technology li-censing; Christopher Millard,professor of privacy and informa-tion law and head of the CloudLegal Project in the Centre forCommercial Law Studies at QueenMary University of London; andHartmut Seibel from the EuropeanPayments Council.

When CCTV talks to streetlights SESSION

Internet of things,machine to machinecommunication and otherspooky things: how bestto deal with smarthomes, intelligent cars,computer-basedautomated trading andself-automated logistics

COMMITTEE

Technology LawCommittee, Banking LawCommittee, InsuranceCommittee, Product Lawand AdvertisingCommittee

TIME/VENUE

Today, 9:30 am – 10:45am, Hall L2

Adam Chernichaw

News V I E NNA6 IBA Daily News

From Manuel Barroso to Benjamin, Rivkin to the Vienna Boys Choir, here are a selection ofthe best images from Sunday’s opening ceremony

The start of the show

www.iflr.com NewsThursday, 8th October 2015 7

Foreign combatants and theconcept of universal jurisdic-tion are two issues at the

heart of this afternoon’s session,‘Policing the world: the role of na-tional courts in extra-jurisdictionalconflict crime’. It will see a broadpanel discuss cases such as theprosecution of Blackwater privatesecurity guards for civilian deathsin Iraq and the decision by SouthAfrica not to detain Sudanese pres-ident Omar al-Bashir, who iswanted by the International Crim-inal Court (ICC).

Some commentators, such asBritish diplomat Sir ChristopherMeyer and Oxford University pro-fessor Margaret Macmillan, arguethat the credibility, relevance andefficiency of big international insti-tutions, including the UN, have in-creasingly come under question.

Meyer sees a great unravellingof international institutions set upafter the Second World War, withcountries reverting to their nationstates. Macmillan argues that therefugee crisis has been a fundamen-tal challenge to European valuesand that it has become quite clearthat there is no consensus on whatEuropean values are.

These volatile international-na-tional fault lines are clearly visiblewhen it comes to the mountain oflegal entanglements faced by na-tional courts when attempting to trypurportedly universally acceptedwar crimes committed in foreigncountries. Related to this is the lackof agreement on the concept of uni-versal jurisdiction, in which statesclaim criminal jurisdiction for al-leged crimes against humanity re-gardless of the accused’s nationalityor country of residence.

A key question is if the credibilityor validity of the ICC is in doubtand the concept of ‘universal juris-diction’ is also undermined, whatthat will mean for complex warcrime prosecutions.

According to criminal lawyerJonathan Grimes from KingsleyNapley, the answer is simply evi-dence. “The landscape is con-stantly changing and principlesthat were thought to be establishedprinciples of international criminallaw can fall out of favour,” saysGrimes, adding that with such lim-ited jurisprudence a single case canhave massive law changing conse-quences. Cases in point includethose of Chile’s Augusto Pinochetand potentially the current case in-volving Omar al-Bashir.

A fraught processSpeakers in the panel include JeremyGauntlett SC, general counsel of theBar of South Africa, civil liberties

solicitor Daniel Machover, of Hick-man & Rose Solicitors, MichielPestman of Dutch firm Prakkend’Oliveira Human Rights Lawyers,David Schertler of Schertler & Ono-rato, Alain Werner of Civitas Max-ima and Berlin-based ICC lawyerNatalie von Wistinghausen.

Moderators Grimes and Rein-hard will tackle questions such aswhat acts on the battlefield are sub-ject to universal jurisdiction. Is itnecessary or appropriate for West-ern nations to act as global warcrimes prosecutors and do they thenrisk being seen as the world’s policeofficers? Do we run this risk thatwar crime prosecutions become po-litical footballs?

The numerous litmus test casesinclude the sentencing by a UScourt in April 2015 of four Black-water private security guards forthe killing of 17 civilians in NissourSquare, Iraq, in 2007. Schertler rep-resented one of the guards chargedwith manslaughter in the case. An-other is that of Sudanese presidentBashir, who has been indicted bythe ICC for war crimes committedin Darfur. In 2015 South Africa, amember of the ICC, chose not todetain Bashir while he was in the

country and Gauntlett, a counselfor the South African government,has argued that the matter shouldbe referred to the Supreme Court ofAppeal.

Werner has been representingvictims in the case against formerpresident of Chad, Hissène Habré,in front of the ExtraordinaryAfrican Chambers in Dakar, Sene-gal, another key current case beingtried by an ad hoc purpose-estab-lished court in Senegal.

War crimes: a political labyrinth

SESSION

Policing the world: therole of national courts inextra-jurisdictionalconflict crime

COMMITTEE

Criminal Law Committee,the War CrimesCommittee

TIME/VENUE

Today, 2:30pm –5:30pm, Rooms 1.85 &1.86

Jonathan Grimes

Poll V I E NNA8 IBA Daily News

More thanmoney

The numbers are simply stag-gering. Sub-Saharan Africaneeds an extra $50 billion

per year to build the critical infra-structure it needs to continue itsgrowth trajectory. If a countrylacks, for example, functioningroads, investors won’t waste theirtime. This, in turn makes it difficultfor a government to pull more ofits population into the middle class.

The problem prompted us to pollreaders on what should be priori-tised in closing sub-Saharan Africa’sinfrastructure gap. In line with thefact there is no single, or obvious,solution, the results are split. But amajor theme that did emerge is thatmoney isn’t the primary issue. Forall the focus on dollars, many believethat neither project equity nor debtfunding is the main issue.

Thirty-seven percent of respon-dents believe that improved conces-sion and project structures need themost attention. Many projects inAfrica flounder because there is notenough joined-up thinking before-hand, to make sure they are bank-able. “I have seen a real clashbetween the different ministries inthe government,” says one partner.While one department supports thedeal, another claims no knowledgeof it. Better coordination must alsofeed through to the drafting. “Veryfrequently you look at stuff foryour bank clients and you realisethey are sub-standard, full ofgaps,” says one partner.

Governments need to have inmind a baseline position of lenderson the particular type of projectwhen looking at basic project risk.“Often it is either unrealistic or ill-defined allocations,” says one re-spondent. Some don’t, forexample, realise that expecting adeveloper to buy or lease the landneeded to build a transmission line– which may require haggling withhundreds of local farms – is unfea-sible. Another respondent recountsa tender where the government

expected sponsors to bid withoutmaking any amends. “The docu-ments were so deficient that theyactually had to re-issue them.”

Africa is plagued by businessand macro risk perceptions – manyof which are unfounded. Nonethe-

less, this compounds the impor-tance of having a project that isn’tfull of holes. “You actually need tomake sure you are going to marketwith a structure that is the same or

better – but not worse – than whatyou expect elsewhere in theworld,” says one partner. Somesuggest the Middle East or South-east Asia are good goals.

A lack of creditThe five percent that voted ‘other’raise similar points, but they focusmore on improving the credit that

supports cashflow obligations.“The market often isn’t sufficientlydeveloped, so you fall back on gov-ernments that have crappy cred-its,” says one London partner. Hegives the example of a power plant.If the offtaker is a struggling utility,the developer’s payment stream de-pends entirely on the guarantee ofa possibly unreliable government.There are also non-technical losses– such as people stealing electricityby illegally hooking up to powerlines – which, in the case of Nige-ria, can lead to losses of 50%.“You can’t not get paid for half ofyour output and hope to make anymoney,” the partner says. “So re-ally the maturing of those markets

is what we need – that would solveeverything else.”

A bigger problem flagged by an-other respondent is the fact that insome countries the governmentdoesn’t provide a guarantee. “Forme that’s madness,” he says. “Thereneeds to be a way for lenders andinvestors to get comfortable that ifcontractual rights aren’t met, then

someone in the government will puttheir hands in their pocket andmake the payment.”

Private equityDiverting private equity and infra-structure debt funds won as manyvotes as improved structuring, yetit was harder to pinpoint the rea-sons why. In 2014, $4.1 billion wasraised by Africa-focussed fundslooking to invest in operationalbusinesses. Fundraising this yearwill far-exceed that figure. Theproblem is that there aren’t enoughlocal enterprises ready to absorbthat volume of capital. It’s sparkedspeculation that the money couldbe pushed into infrastructure.

It’s already happening in SouthAfrica, with firms such as Actis in-vesting in the country’s PFI renew-able energy programme. AJohannesburg-based partner saysthere are other funds now lookingat other power projects. “They arenot quite your classic private equityfunds, but still private equity of acertain ilk,” he says.

But for those that aren’t dedi-cated to infrastructure, they arelikely to become involved onlywhen the project is more devel-oped. “Most firms require a certainlevel of certainty on returns, thereis likely a limited number of proj-ects that are sufficiently de-riskedfor broader private equity funds,”says one respondent.

DFI initiatives Development finance institutions(DFI) have a strong toolkit of guar-antees and other support mecha-nisms which they are continuallystriving to improve. The AfricanDevelopment Bank (AfDB) is push-ing for standardised suites of doc-uments, and spearheaded theAfrica50 fund which had its firstclosing in July. But 16% of respon-dents believe they must do more.

Part of this feeds back to thesovereign guarantees. Some DFIsdon’t like governments taking onthese obligations as it’s more debton their balance sheet. But it’s a vi-cious cycle; less guarantees meansless development and income. “Ifthe World Bank and IMF were a bitopen-minded about what govern-ments can and can’t do, that wouldfree up an enormous amount oftime and resources for people toprogress projects without having toworry about nonpayment,” saysone source. He also stresses that it’sonly a contingent liability.

Of the remaining options, Islamicfinance gained five percent of thevotes and local bank funding wassnubbed. “That’s not critical. Onewill get funding from SouthAfrican and European banks,”says one respondent.This article first appeared in theOctober issue of IFLR.

“The documentswere so deficientthat they actuallyhad to re-issuethem”

All the financial investment in the worldwon’t solve Africa’s infrastructure shortage.Deep-seated market realities must change toimprove projects’ underlying credit

To close sub-Saharan Africa’s infrastructure gap, what should beprioritised?

Capitalising on Islamic finance liquidity: 5%

New support tools from DFIs and ECAs: 16%

Other: 5%[Local bank funding – 0%]

Attracting foreign PE andinfra debtfunds: 37%

Improved concession andproject structures: 37%

News V I E NNA10 IBA Daily News

The legal profession is suffer-ing from huge discrepanciesbetween what is taught and

what is practiced, according to pro-fessor David Wilkins of HarvardLaw School.

Speaking at yesterday’s PPIDshowcase ‘Blurred lines, what itmeans to be a lawyer in the 21stcentury’ professor Wilkins outlinedhow legal education is changing inthe US and globally.

“We are having a crisis in legaleducation,” he said. “There is a de-bate over what we are supposed tobe doing in law schools. Do weneed to fundamentally reshape it ortinker round the edges?”

The employment market hasworsened for lawyers. Last yearbarely half of US law school gradu-ates found jobs that required JDswithin nine months of graduation.“This is a big problem,” said Wilkins.

Courses and even educationalestablishments are changing every-where. In the US, NorthwesternLaw has become one of the firstlaw schools in the country to offera two-year JD program for foreign-educated lawyers. Yale, meanwhile,has a new PHD in legal studies.More generally, there has been aproliferation of online, part-timeand for-profit certificates.

In Japan and Korea post grad-uate law schools are growing. InIndia, China and Brazil largenumbers of underperformingschools are under threat of clo-sure. There has also been agrowth in elite private law schoolslike Jindal Global Law School,Peking School of TransnationalLaw and Bucerius Law School.

The disconnectThe focus on new courses and lawschools is understandable. Wilkins,who teaches several courses onlawyers, argues that this disconnectused to be managable when firmswould spend several years traininggraduates in a guild-like model.

“But most of you, if you arehonest, don’t have the time or thepatience to do that. So you areturning to us [law schools] andasking for the lawyers to be hittingthe ground running.”

According to Wilkins, this hasled to a theory versus practice de-bate. “Should law schools return tobe more practice-focussed and givestudents the skills to be ready onjob one? The opposite critique isthat they have become more like atrade school.

Like most dichotomies it seemsthat niether is true and that weneed more of both.”

Earlier in the session, co-chairStephen Revell, head of FreshfieldsBruckhaus Deringer’s Asia practice,shared his views on the future ofthe profession.

“Demands from clients arechanging rapidly – both businessclients but also on the retail side.People are simply not prepared topay for legal services in the way theyhave been traditionally,” said Revell.

The impact of technology willalso be greater than expected, hesaid. “We all accept it is with us andis changing the profession. But Ithink we will look back in five yearsand think that we didn’t adapt suf-ficiently to those changes.”

Key takeawaysProfessor David Wilkins of•

Harvard Law School believesthe legal profession is sufferingfrom a crisis in education;He argued in yesterday’s•

session ‘Blurred lines, what itmeans to be a lawyer in the21st century’ that there is adisconnect between what ittaught and practiced;The employment market has•

worsened for lawyers. Last yearbarely half of US law schoolgraduates found jobs thatrequired JDs within nine monthsof graduation.

The legal education dilemma

Punishments for concealingcartel offences can be just asbad as the offence itself, if

not worse, according to BrentSnyder of the US Department ofJustice.

Speaking in yesterday’s session‘Hot topics in international cartelenforcement’, Snyder was address-ing the question of whether to co-operate in cartel investigations.“Cooperation benefits but cover-ing up never does,” he said, addingthat obstruction of an investigationin the US carries a more severepunishment than cartel infringe-ment, and that more countries

around the world recognise ob-struction than cartels.

The session heard US, EU andJapanese regulators outline theirefforts to thwart cartel behaviourin areas such as bid rigging andprice fixing while private practi-tioners questioned the integrity ofsome of those efforts and querieddefinitions.

In the regulators’ arsenal is amix of carrot and stick approacheswhich include immunity, settle-ment and leniency programmes forself-reporting and compliant com-panies to heavy financial penaltiesand criminal measures against bull-ish infringers.

The EC viewFresh from eight cartel-related de-cisions since last year, in marketsincluding LCD screens, Libor rateand animal feeds, Kris Dekeyser,from the European Commission’sDirectorate General for Competi-tion, stressed that cartels remain atthe top of the Commission’s prior-ities… no matter the complexity ofthe market.

The Commission has lately beenmaking its approach more sophis-ticated with the introduction of a

Damages Directive that potentiallyescalates the size of the financialpenalty for infringers. It does thisby giving victims easier access toinformation to allow them to pur-sue their own claims. The Commis-sion’s policies on settlementprocedures and leniency applica-tions have also recently been con-solidated by test cases.

These mechanisms represent thecarrot approach. However, in a re-cent first, in a smart car chip cartelinvestigation the Commissionabandoned a settlement process torevert back to prosecution. “Whilewe are willing to explore settle-ment we are not willing to toler-ated gaming of the system,” saidDekeyser.

From Tokyo, Deputy SecretaryGeneral of the Japan Fair TradeCommission (JFTC) TashiyukiNambu explained where the Japan-ese position varied marginally fromthe EU and US approaches.

Hiding the evidenceA core question for companiesbeing investigated is compliance.Snyder outlined instances whereexecutives had written false tran-scripts for employees to read, at-

tempted to change hand writtennotes, deleted email accounts andfalsified certificates.

“Most common are efforts to de-stroy and hide documents,” saidSnyder, adding that “I worked onone case where an executive hadburied documents in his back yard.”

Aside from the risk of obstruc-tion prosecution, such actionsraise the questions over the mo-tives for hiding the documents.

The decision can also underminelater efforts to plead for leniency.

Melanie Aitken and AndrewWard, private practice lawyersfrom Bennett Jones in Canada andCuatrecasas Gonçalves Pereira inSpain, voiced a number of con-cerns, in particular relating to leniency applications, with Wardindicating instances where le-niency and rule of law clashed. Butregulators highlighted the impor-tance and integrity of the tool as away of rooting out cartel activity.

From the regulators’ side,drawing the lines between parallelactivities (where prices coincidewithout amounting to market fix-ing) and a conspiracy, continuesto be a fine art. According toNambu, “rigging can continue fora long time and rigging conspira-cies can be framed a long timeago and this means it can be veryhard to prove”.

“The mere fact that you dis-cuss with your competitor futureprices and strategy is enough forus to build a case,” said Dekeyser.According to Ward, this left com-panies with little option but tosimply not communicate withcompetitors.

Regulators hit back on cartels

Tashiyuki Nambu, Japan FTC

Brent Snyder, US DoJ

David Wilkins of HarvardLaw School

www.iflr.com NewsThursday, 8th October 2015 11

QUESTIONWhat have you enjoyedmost about Vienna?

V J MathewV J Mathew & CoIndia

We went to the Maritime andTransport Committee excursion tothe national park this week. We saw

the vineyard, tasted seven wines and had adelicious lunch. We really saw the beauty ofVienna.

Clara IbirogbaLagos State Ministry of JusticeNigeria

My impression is of a very old city,so you can really feel the history. Isaw the cathedral at Stephansplatz

yesterday which was amazing. I also think thetransport system’s really clear and have enjoyedtaking the trains.

Juan Felipe BustamanteBustamante & BustamanteEcuador

The Spanish Riding School wasfantastic. We went last night andsaw the horses. It is the only

institution in the world which has practiced fornearly 450 years. It was an incredible spectacle.

Elmer MunaTark Grunte SutkieneLithuania

I haven’t had much time in the citysadly. But I did manage to go to theAlbertina Museum for the Edvard

Munch exhibition which was fantastic. I saw hiswork, The Scream, obviously. The city in general isso relaxed. I admire its café culture and late closingtimes.

Ade AdeyemoLaw Reform Commission Nigeria

I love the fact that there is so muchart and music. I’m definitely going totry to get to the house that Mozart

lived when he was a child later this week. I also likethe weather. Coming from such a hot climate, this isgenuinely refreshing.

Hasmik BaroianBombardierAustria

As a resident of Vienna, I can speakhighly of the international scope ofthe city. It contains the headquarters

of major international bodies and is a fantasticplace to do business. I adore the city centre,Stephansplatz too.

Ilya KomarevskiTsetkova Bebov KomarevskiBulgaria

My experience of Vienna relates tothe social programme. I have beento several excellent receptions held

by law firms. These include trips to the Albertina,the Imperial Palace and cultural tours too. It’s afantastic city.

Rodrigo Fernández de NestosaZacarias & FernándezParaguay

So far the architecture hasimpressed me the most. All thevenues for the receptions have been

incredible. The natural history museum in particularwas fantastic. And today I had breakfast at theopera, which was really special.