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What should the IBA’spriorities be in 2016?

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MERGER CONTROL ENFORCEMENT

Why established bodies mustlead by example

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The IBA: digital fight againstatrocities

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S P O N S O R E D B Y

Alack of specialised finance courts andfinancially literate judges could havedire systemic consequences, accord-ing to professor Jeffrey Golden, governor atthe London School of Economics and Politi-cal Science.

Golden, who was speaking at ‘Deriva-tives: today and tomorrow’ yesterday morn-ing, argued for more training of judges andarbitrators and outlined the risks of the con-tinued failure to act.

Citing the growing complexity of deriva-tives contracts and the International Swapsand Derivatives Association (ISDA) Master

Agreements following the financial crisis,Golden said: “when a judge misinterprets oneof the terms in one of these agreements, thatmistake goes around the globe and affects po-tentially billions of dollars of trading.”

The lack of regular specialised financialcourts was puzzling, he said. “In many juris-dictions we have juvenile crime, intellectualproperty and tax courts. What about a fi-nance court? Are these other areas moreglobal, systemically important than finance?

Some progress has been made. Goldenoutlined the work of the Panel of RecognizedInternational Market Experts in Finance

Train judges in financial disputes

“Judges who understand the financialmarkets can be a huge ally in mitigatingsystemic risk” – Jeffrey Golden

Equality Now’s research into rape lawshas revealed a huge inequality be-tween countries’ abilities to serve jus-tice to victims of rape.

The organisation presented the report’sinitial findings at yesterday’s session: ‘IBAand Equality Now: rape laws crowdsourcingproject’.

The report, whose findings are now beingverified, shows how legislation and social at-titudes towards rape vary widely, albeit withsome common themes. It also shows how anendless list of circumstances neutralises un-ambiguous and well-meaning rape laws.

Among the obstacles, which are found inmature legal systems such as the US and UKas well as less developed systems, are poorpolice investigations, perverse judicial proce-dures, widely held attitudes and socialstigma. These issues can often destroy casesin their early stages.

“There is schizophrenia in the law,” saidJacqui Hunt, director of Equality Now. Huntcited examples where statutory rape wastreated as criminal violence but parallel lawsexisted where a perpetrator could be ex-empted if he marries his victim. “Anotherkey issue is the talk of sexual violenceframed in terms of morality rather thancriminal violence,” she said.

Hunt gave examples of cases wheremorality frames the debate, creating a so-called trickle-down effect to other parts ofthe law. These included where rape is crimi-nal but because it affects the victim’s honouror chastity (the way he/she is perceived), orwhere some laws stipulate that a victim mustresist, implying he or she could and shouldhave stopped the crime. Another instancelooks at whether the loss of virginity makesthe case worse. “How does that work?”asked Hunt.

Global testimoniesThe session presented stories and testimoniesfrom around the world, in particular fromthe UK, US, Nigeria and Sri Lanka.

Meg Strickler, from US firm Conaway &Strickler, argued that legal systems should“take the shame away from the victim andprotect the victim”. She criticised the slowmechanisms in the US for collecting DNAevidence. Gillian Rivers from PenningtonsManches in London argued that there wasmuch still to do in England and Wales, point-ing to police failures in appropriately han-dling victims and social attitudes heavilystigmatising victims in the press.

Olufunmi Oluyede, from TRLPLAW inNigeria, attacked Nigerian law for requir-ing the corroboration of evidence in rapecases. “The corroboration issue is com-pletely out of place,” said Oluyede, point-ing out that these crimes were not usuallycommitted in public and a lack of witnessevidence often threw cases out immediately.

Ruwani Dantanarayana, from John Wil-son Partners in Sri Lanka, highlighted that2,008 rape and incest cases were registeredin 2014 by police. “Only one was convictedand 1,792 are pending”, said Danta-narayana, who also examined laws that ex-empt the Muslim community from statutoryrape in marriage.

Continues on page 2

Rape laws are‘schizophrenic’

The main attractionsFatou Bensouda and Kofi Annan draw the crowds

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(PRIME finance), a non-profit whose man-agement board he chairs. The institution wasestablished to assist judicial systems in theresolution of disputes concerning complex fi-nancial transactions. It has the support of in-ternational regulatory bodies, the backing ofthe International Bar Association and hastrained judges in the US and Japan.

Elsewhere, in the UK, a financial courtdubbed the Financial List launched in July,to handle major banking disputes at TheRolls Building in London. Disputes worthover £50m, or those that set the precedentfor behaviour in the financial services sector,

will qualify for the court, which will bepresided over by a small group of judges spe-cialised in the field.

More needs to be done though, accordingto Golden. “Regulation is preventative medi-cine. By that analogy, the courts are our hos-pitals, and judges and arbitrators are oursurgeons. I would query whether enough ef-fort has gone into them,” he said. “Judgeswho understand the financial markets can bea huge ally in the regulators in mitigating fi-nancial systemic risk.”

Golden said that it made little sense forparties to fly to remote places for unenforce-

able decisions and no sense at all to sendplaintiffs to local courts for an enforceablejudgment but the wrong decision (due tojudges’ lack of experience).

Golden emphasised the occasionally un-derstated importance of case law within fi-nance. “When I was a young lawyer I readthe law, and maybe the regulations, but mostof my time was spent mining my cases. Howmuch due diligence to do on in an IPO? Ichecked the cases and found out when ajudge viewed enough had indeed been done.”

Earlier in the session, David Geen, Euro-pean general counsel of ISDA in London

outlined his organisation’s work following thefinancial crisis and subsequent G20 meeting inPittsburgh in 2009, where many of the princi-ples for recent derivatives regulation emerged.

Geen explained that with the US havingintroduced Dodd-Frank early, five years ago,EU equivalents such as the European MarketInfrastructure Regulation (Emir) which reg-ulates clearing, and Markets in Financial In-struments Regulation (Mifir) which tacklestrading, lagged behind. “The US imple-mented early. But we are now facing differ-ences between US and elsewhere which iscausing plenty of problems,” he said.

Established merger controlenforcement authoritiesmust lead by example andkeep investigations relevant. Thatwas the message yesterday morn-ing as competition lawyers fromacross the globe came together tocelebrate the 10th anniversary ofthe International Competition Net-

work (ICN). While analysing theeffectiveness of the best practices itestablished a decade ago, they alsocompared merger control stan-dards and regimes in their own re-spective jurisdictions.

As testament to its success, theICN’s annual meeting is the singlelargest gathering of competition

lawyers. But as an international or-ganisation like any other global reg-ulator, the control it has overimplementation on the ground islimited. According to speakerWilliam Kovacic, professor of lawand policy at George WashingtonUniversity Law School and ex-chair-man of the US Federal Trade Com-mission (FTC) its main challenge atthe moment is establishing a recur-ring review process. The problemwith that, he said, is that ICN par-ticipation is voluntary. Critiquing acountry’s regime is a disincentive.

Competition law has come along way in the recent past. In1978 there were fewer than 10 ju-risdictions with a regime; there arenow nearly 120, most of which aremandatory.

A mammoth taskIn the initial stages of establishing acompetition committee, regulatorsmust be aware of the mammothtask they are undertaking. “Alwaysstart with higher thresholds, and re-visit them after five years,” said Ko-vacic. “Match commitments tocapabilities – then double the com-mitments you anticipate.”

China’s Ministry of Commerce(Mofcom) was an unlikely hero ofthe debate. While moderator of the

session Dave Poddar, a partner atClifford Chance, referred to Chinawith a degree of trepidation,Adrian Emch, a partner at HoganLovells in Beijing, proclaimed astate of cautious optimism goingforward. The authority has re-cently streamlined the filingprocess and reorganised its staff, hesaid, reducing the number of teamsworking on a case from two toone. But thresholds remain low,and to date no party has made a

court appeal to dispute a Mofcomruling. “As lawyers we’d like to seethat,” he added.

Still in its infancy in compari-son, the Competition Commissionof India (CCI) is just four yearsold. Cyril Amarchand Mangaldaspartner Nisha Kaur Uberoi saidthat while it is efficient, there havebeen inconsistencies in its ap-proach so far.

Speakers also discussed the needfor competition regulators to keep

investigations focussed. Kovacicsaid there is a temptation to engagein regulatory leveraging; offeringfaster clearance if the merging par-ties agreed to other, often irrelevantconcessions. When Bosch acquiredthe SPX Service Solutions businessfrom SPX Corporation in 2013, forexample, the FTC took the oppor-tunity to resolve standard-essentialpatent issues concurrently. “Basi-cally we should all be purists,” saidPoddar. “Keep competition con-cerns competition-relevant.”

As more jurisdictions establishtheir own competition regimes, theonus is increasingly on the existingauthorities including the FTC to setan example in its ruling. “Theolder authorities don’t appreciatehow closely watched they are,”said Kovacic. “If western jurisdic-tions want to lead, they need to beaware of that.”

Mexico’s Comisión Federal deCompeten’s (CFC) approach wascelebrated for its commitment totransparency. The process hasbeen formalised in recent times,said Basham Ringe y Correa’sAmilcar Peredo. And its fast-trackservice has vastly improved: “Pre-viously companies spent as muchtime explaining why they quali-fied for fast-track, than theywould have spent on the wholeinvestigation,” he said.

Mexico’s somewhat flexibleregime differed drastically fromothers in the room. While compa-nies can file a request with theCFC with even just a draft of theMemorandum of Understanding(MoU), others including Chinaand India require a binding agree-ment to have been signed first.

Merger control authoritiesmust lead by example

“The olderauthorities don’trealise howclosely watchedthey are”

Continued from page 1

William Kovacic

www.iflr.com NewsTuesday, 6th October 2015 3

Public opinion could be pre-venting Europe from main-taining its commitment tohuman rights. As millions flee con-flict in Syria, the continent’s citi-zens are having their compassiontested considerably. Are the mem-ber states of the European Councildoing enough, or are the rights ofsociety being overruled by those ofthe individual?

This was one of a number ofquestions that arose at yesterday’s‘Human rights in Europe’ session,hosted by Baroness HelenaKennedy of the IBA’s Human RightsInstitute (IBAHRI). Increasing callsfor tighter immigration and harderrules on terrorism across the conti-nent are influencing governmentpolicy, due in part to the increasingimpact of focus groups and pollsterson political parties.

According to Kennedy, manyEuropean citizens are claiming thattheir own freedom to exist is beingundermined by the increasing num-bers of immigrants arriving in theirhometowns. “Increasingly, parties

are jumping on the bandwagon toimpose some of these fundamentalrights.” Kennedy asked: “How dowe counter the arguments thatmany members will make; that thisis a reasonable response to thatwhich is unreasonable?”

An integral part of the Councilof Europe since its inception in1949, the European Conventionon Human Rights has long beenembedded in European law. Panelmember Hans Corell, a formerlegal counsel to the UN, believesthat the current crisis stems fromthe political response to Septem-ber 11. The problem arose, hesaid, “when extraordinary meas-ures were taken.” A slippery slope

he claims, that has resulted incountless violations of establishedhuman rights law. “A develop-ment that simply has to be coun-tered,” he added.

Public moodAccording to Christopher Pinter,head of the UN Refugee Agency inAustria (UNHCR), the key ques-tion is whether politicians are ac-tually thinking what the localpopulation is thinking. Pinter high-lighted an example of recent localelections in Austria, and the corre-sponding success of the FreedomParty of Austria, a right wing or-ganisation that opposes Austria’scurrent immigration policy.

Analysts agreed that the partyhad been boosted by public opin-ion that too many refugees arebeing based in Austria. It enjoyedits biggest success in areas whereno refugees at all were accommo-dated. “As soon as the local popu-lation is in direct contact with aforeigner; they don’t know if theperson is a migrant, an asylumseeker, a rejected asylum seeker, arecognised refugee, or even an Aus-trian who looks different,” he said,adding that “they don’t distin-guish, and they are afraid”.

According to Pinter, the solutionis to increase awareness of the ob-ligation to protect the sacrosancthuman rights that we have had inEurope for several decades. “Howdo we deal with the current situa-tions, when politicians are afraidthat they will lose elections?”

To further emphasise the point,Pinter turned to statistics on the Eu-ropean response to the refugee cri-sis. Much attention is given to thecurrent situation in Greece, where,as of last weekend the number of

refugees entering via sea reached400,000. While clearly a significantnumber, Lebanon alone has re-ceived 1.08 million refugees to date.This amounts to around 25% of itspopulation. Europe so far has takenin 0.1% of its population.

The human rights issues thatarise from this, said Pinter, arecompounded by the measures thathave been implemented by severalEuropean nations to prevent theinflux of refugees.

Fences have been built, freedomof movement has been restricted,asylum durations have been capped,and numbers have been limited. Themessage from much of Europe, hesaid, appears to be: ‘Don’t come tous, you are not welcome here, wedon’t want to look after you.’

Key takeawaysEurope must remember its•

long cherished commitment tohuman rights, according to apanelist at yesterday’s session‘Human rights in Europe’;The rights of the individual•

should not be put above that ofthe public at large. The generalpublic should be educated withneutral information;Member states of Europe are•

increasingly retreating back tonational sovereignty; it is nolonger about making humanrights for all.

Is public opinion blockinghuman rights?

Hans Corell, Baroness Helena Kennedy and Christopher Pinter

News V I E NNA4 IBA Daily News

The value of classic cars has increasedat a steadier rate than any other alter-native asset over the past 10 years.For investors, the evidence suggests that theyhave been a cash-cow for some time. Butshould buyers uphold these personal passionprojects, or delve into the unchartered terri-tories of investment fund asset classes?

In yesterday’s session, ‘Classic cars as a newasset class’, a panel of experts was undecidedon the answer to this question. Philip Kantor,of Bonhams International Auctioneers andValuers, outlined the impressive levels of infla-tion seen on some models that has contributedto the markets overall steady growth.

As an example, Kantor gave the 1962 Fer-rari 250 GTO. Known as a ‘widow maker’for killing its first owner, it initially sold foraround $18,000 (adjusted price).

The Ferrari eventually sold in 2014 for$34.5 million, to this day a world record in

the auction market. Another example isthat of a rare McLaren F1, sold once in2003 for $731,000, and then again earlierthis year for a staggering $13.75 million.“The top stuff always commands topprices, even when the market is flat,” saidKantor.

With the right investment, the market isclearly lucrative. Private banks are tellingtheir customers to invest, but as panelistDirk Kolvenbach of Heuking Kühn LüerWojtek suggested, there is a significant risk.“By yourself, you can buy, sell, make aprofit. But if you invest in a fund, it can gowrong.” He goes on to suggest factors likehuman error, technical faults and problemswith evaluation, that make classic cars fartoo much of a risk to be an asset class intheir own right. Kolvenbach’s final thought:“If the fund goes wrong, it’s not like a winefund, you can’t drink it.”

Law firms should encourage and en-able partners to plan the latter yearsof their careers by having open discus-sions and clearly defined pathways.

That was the message that emerged fromyesterday’s afternoon session, ‘Trends inpartner’s careers’.

A panel including several former Euro-pean law firm partners shared their varyingexperiences of retiring from internationalfirms, both forced and voluntary, and allwere for actively planning for the future.

Former Eversheds chairman, John Heaps,now a non-executive director at Yorkshire

Building Society, left the firm at 60, the agepartners may first retire. “I was fully awareI was going to leave and I began thinkingabout because I had an exact date in mind. Iwas grateful I knew when I was going toleave; I embraced the time I had left at thefirm and planned for my next step.”

Not every firm defines a partner’s careeroptions as clearly Eversheds. The experienceof another panelist, Michael Lappe, whospent more than 20 years at Linklaters, leav-ing as senior partner, highlighted how detri-mental contractual ambiguities can be.Lappe resigned from the firm on his fifty-first birthday, a year after he had unsuccess-fully asked Linklaters to amend his, and allpartners’ contracts, to include parametersfor retirement.

“I think that in order to make partnersaware of what the deal looks like today, lessromantic and with more of a contracting as-pect to it, it would be useful to formally im-plement into the articles of the firm whenyou will retire,” said Lappe.

“When you join the partnership you needto know it will end. It can be when you reacha certain threshold, be it with age or yourtenure with the firm.”

Planning thetwilight years

“When you join the partnership you needto know it will end” – Michael Lappe

Passion or assetclass?

A 1962 Ferrari 250 GTO Berlinetta

www.iflr.com NewsTuesday, 6th October 2015 5

There are few better times tocelebrate the fundamentalprinciples of the rule of lawthan the 800th anniversary of theMagna Carta.

Corruption is often viewed asthe biggest obstacle standing in theway of peace, stability and humanrights. Reports of corruption can bedetrimental to an individual or or-ganisation’s reputation, besmirch-ing its credibility for years to come.But when that corruption hasspread so far as to infect even thejudicial system, then the fundamen-tal role of that system – to be fair toall – is compromised.

A judge who has taken a bribeor has in any way obstructed thecourse to justice, for any party, can-not be considered independent orimpartial. The problem is worsenedwhen the manipulation comes froma higher power, such as the govern-ment. This creates an environmentwhich fosters further corruption.Objectivity and neutrality, the twomost central principles to the ruleof law itself, no longer exist andfundamental human rights are, bydefinition, violated.

Today’s IBA showcase on com-batting judicial corruption willcome together to celebrate the im-portance of independent justice,and consider how to protect it.

Joining IBA President and part-ner at Debevoise & Plimpton DavidW Rivkin to moderate the sessionwill be Homer Moyer Jr., partner atMiller & Chevalier Chartered andco-chair of the IBA’s Rule of LawForum and Robert Wyld, partner atJohnson Winter & Slattery and co-chair of the Anti-Corruption

Committee. Speakers will discussthe root causes of corruption andbest practices for combatting it.They will also look at anti-judicialcorruption regimes in various coun-tries, and consider what steps theIBA itself can take.

“The IBA has a particular re-sponsibility to combat judicial cor-ruption – it can be effective inways that others cannot,” Rivkintells IBA Daily News. “It has done

a lot over the years in the widerfight, but we have not focussed onthe government side before, andthat’s especially important.” With55,000 individual members and195 bar associations and law soci-eties around the world, the IBAhas a unique grasp on the globallegal community.

The roundtable session is takingplace to highlight and celebrate theIBA’s Judicial Integrity Initiative,which was launched by Rivkin inFebruary as one of the key priori-ties of his two-year tenure. Thisyear it has been working with the

OECD, the Basel Institute ofGovernance and various other anti-corruption committees.

In London in February andSingapore in March, the IBA organ-ised a series of high-level discussionswith prosecutors, civil society or-ganisations, leading lawyers andbusiness executives. Representativesfrom Australia, Hong Kong, India,Indonesia, Malaysia and SouthKorea have been in attendance atthese meetings, and today’s sessionwill reflect the true globalisation ofthe discussion so far.

The legal ramificationsFollowing these meetings, the IBAhas been compiling a survey to cir-culate among its members. The ideais to raise awareness of the legalramifications of judicial corruptionand to find out members’ own per-sonal experiences of how corrup-tion in the judicial system arises,what forms it can take, and how itis dealt with in different jurisdic-tions. Further in-country dialogueswith similarly high-ranking officialsare also being considered next year.

In 2016, the IBA will compilethe results of the survey and pres-ent a series of best practices andrecommendations to further pro-mote integrity among its members.“I have been very pleased with theprogress we have made so far. Noone has done this kind of study be-fore,” says Rivkin. He hopes for alively, interactive discussion in aroundtable format, much like thosethat took place earlier this year.

The session will feature an inter-nationally diverse range of speakers,all offering their own viewpoints

and experiences of judicial corrup-tion. Representatives from OECD,United Nations Office on Drugsand Crime (UNODC) and theUniversity of Basel’s Faculty of Lawwill also be joined by MariaLourdes Sereno, Chief Justice of theSupreme Court of the Philippines.

“I’m most interested to hearabout the perceptions of individualspeakers – particularly judges – asto how they think corruption oper-ates in their judicial system, howthey respond to it and the extent towhich it is managed,” says Wyld.“For example, in Singapore, exter-nal investigators are brought in,but in other jurisdictions it may bemanaged internally.”

Singapore’s anti-judicial corrup-tion regime has been cited as an in-ternational model before. Thecreation of a Singapore Inter na -tional Commercial Court in Mayearlier this year is evidence of thecountry’s efforts to position itself asa global dispute resolution centre,and in particular the Asian hub.

A global problemOther countries are also taking ac-tion in the fight against judicialcorruption. Several Ghanaianjudges – at both high and lowercourt level – are being investigatedover allegations of corruption.China’s Central Politics and LawCommittee is set to relaunch aprogramme to recruit judges fromthe top ranks of lawyers and aca-demics to improve its judicial sys-tem, which has been criticised inthe past, and the National Judicial

Council of Nigeria has taken se-vere action in recent years againstthose found guilty.

While manifestations of corrup-tion seem to be most common indeveloping countries, judicial cor-ruption remains a global problem.

Research by the UNODC sug-gests that causes of judicial corrup-tion include low remuneration andfar-reaching discretionary powers,twinned with weak monitoring ofhow those powers are executed. Inthese environments, where the ac-cused individuals sit at the highestechelons of the system, whistle-blowing is especially unlikely. Theresearch also found that a lack ofcomprehensive and regularly up-dated computer systems is one ofthe main causes of such crimes.

The IBA’s role is important inthat it can, and must, set an exam-ple to its members which promotesthe highest standard of judicial in-tegrity. Alongside its JudicialIntegrity Initiative, Rivkin says anadditional objective of the IBA ismaintaining the bar and the courts’independence from the govern-ment. Venezuela, for example, hascome under fire for politicising itsjudiciary system, undermining itsobjectivity in the process.

“I am very much looking for-ward to this showcase programme,because judicial integrity is so es-sential to the rule of law,” saysMoyer Jr. “If corruption compro-mises judges, who are among ourmost important protectors of therule of law, rule of law throughoutsociety is put at risk.”

Corruption’sglobal problem

SESSION

IBA showcase: combatting judicial corruption

COMMITTEE

IBA Judicial Integrity Initiative, the Anti-CorruptionCommittee and the Rule of Law Forum

TIME/VENUE

Today, 9.30 am – 12.30pm, Hall F1

Key takeawaysThis showcase session will•

demonstrate the IBA’s ongoingwork as part of its Judicial In-tegrity Initiative;Speakers will discuss how cor-•

ruption arises, what form it takes,and what action is taken againstit in their own jurisdictions; The roundtable discussion will•

bring together speakers from theUS, Africa, Europe, the Middle

East and Asia from organisa-tions including the OECD andthe United Nations Office onDrugs and Crime;High-ranking speakers from the•

IBA, including President David W.Rivkin, will then look forward atwhat more can be done in thefight against judicial corruption,in what is set to be an insightfuland lively discussion.

“If corruptioncompromisesjudges, rule of lawthroughout societyis put at risk” – Homer Moyer Jr.

“The IBA has aparticularresponsibility tocombat judicialcorruption – it canbe effective in waysthat others cannot”

– David W Rivkin

“The IBA has aparticularresponsibility tocombat judicialcorruption – it canbe effective in waysthat others cannot”

– David W Rivkin

News V I E NNA6 IBA Daily News

Over the past 20 years, thedigital world has grownexponentially to estab-lish itself as a central feature ofmodern life. The ushering in ofthe digital age has changed theway we do almost everything, andforced the general pace of life toincrease.

While the benefits are clear andenjoyed by many, the constant andever-growing use of online plat-forms has its own problems. Itsrapid growth and the very natureof technology has always made itdifficult for the law to keep up.

When it comes to the internet,what are the rules, and whomakes them? What are search en-gines doing with the informationmade available online? And is this

the same as what should they bedoing? How can an individual’sright to privacy be balanced withthe protection of freedom ofspeech, another fundamentalhuman right?

Today’s session will see speak-ers from a variety of backgrounds– including many of the onlineplatforms themselves, as well asthe entities that regulate them –considering the above questions.

The ruling In May 2014 the European Courtof Justice (ECJ) made the revolu-tionary ruling to give people the‘right to be forgotten’ online. Suchwas the result of a case brought toGoogle by a Spanish citizen, whowished for a newspaper article

about his insolvency to cease ap-pearing on the search engine.

The ECJ stated that internetsearch engines would now be re-quired to remove information con-sidered “inaccurate, inadequate,irrelevant or excessive”, or face afine. In May, a full year since the rul-ing, Google had processed 253,617requests to remove 920,258 links. Ithad approved around 40% of suchrequests. The ruling poses issues,with some claiming it is outrightcensorship that decreases the qualityof information available on the in-ternet by rewriting history.

Controversy continues to sur-round the highly sensitive issue.

As online platforms grow, sodo the public’s concerns over howtheir information is handled. Therise of high-profile cyber-leaksand hacking cases further intensi-fies the debate.

At the end of 2015, the EuropeanUnion will have a new single law,the General Data Protection Regu-lation, which will replace the currentdirective. But when some countrieswithin the union view individual pri-vacy rights very differently, manyhave questioned the value of an all-encompassing regulation.

The roundtable discussion isco-chaired by Robert Balin, part-ner at Davis Wright Tremaineand vice chair of the IBA MediaLaw Committee, and MarkStephens, partner at HowardKennedy and chair of the IBA

Art, Cultural Institutions andHeritage Law Committee.

Experts on the subject willshare their own experiences ofhow they deal not only with statesand totalitarian regimes aroundthe world, but also on their ap-proach to gathering data on indi-viduals. Speakers will also considerthe concept of the right to be for-gotten and its effectiveness.

Stephens says speakers will beasked further questions such as whatright an individual has to privacyagainst the state? To what extent canthe state gain access to material heldin the cloud? What steps should Mi-crosoft or Google take to alert con-sumers that the state is trying toaccess their information?

“This is a hugely relevant issue,particularly with the rise of hack-ing cases like Ashley Madison thisyear,” says Stephens. “In the olddays, nationalised organisationswere the gatekeepers, but that’snot the case anymore. Now wehave these private companies withno monopolistic obligation tousers.”

Speakers include A&E Televi-sion Networks’ Darci Bailey, SteveCrown of Microsoft, Google’sYoram Elkaïm, Steve Wood of theUK’s Information Commissioner’sOffice, Bertrand de la Chapelle ofthe Internet & Jurisdiction project,Sylvia Khatcherian of BridgewaterAssociates and Olswang London’sDaniel Tench.

SESSION

Are online platforms thenew nation states?Achieving privacy,transparency andaccountability in the digitalage

COMMITTEE

Media Law Committee

TIME/VENUE

Today, 9.30am –12.30pm, Room 2.31Presented by the IBA

Key takeawaysToday’s session will approach•

the subject of how to protect anindividual’s privacy rights in thedigital age;Speakers from Google and•

Microsoft and the entities thatregulate them will speak of theirown experiences and considerthe wisdom of the ‘right to be for-gotten’ ruling made by the ECJ in2014;The discussion will also con-•

sider the role of an online plat-form when approached by thestate to provide information on auser.

Today’s session will consider the meta mor -phosing role of online platforms as theybecome the new ultimate gatekeepers of ourpersonal information

The right tobe forgotten

www.iflr.com NewsTuesday, 6th October 2015 7

Born in Madrid in 1953, JoséMaría Aznar is widelyrecognised as the man whoreturned Spain to the forefront ofthe world stage.

In his early years, Aznar attendeda prestigious catholic school inMadrid and received his degree inlaw from Universidad Complutensein Madrid in 1975. After a consider-able stint as a government tax in-spector in the northern city ofLogroño, La Rioja, Aznar began hispolitical career as a member ofSpain’s leading conservative partyAlianza Popular in 1979.

Hailing from a politically ac-tive, staunchly conservative back-ground – both father andgrandfather held governmental po-

sitions under General FranciscoFranco – Aznar first developedright-leaning democratic views at ayoung age as a member ofStudents Against Trade Unionists.

In 1982 he was elected toParliament, representing Ávila,and later became regionalPresident of Alianza Popular inCastile and León. Between 1987and 1989, he also served as headof the Castile and León RegionalGovernment. During this time hebecame a vocal advocate for theparty’s shift to the centre, as wellas for its policies to appeal moreto women and younger voters.

Following the reformation ofthe Partido Popular (PP), 1989saw Aznar receive the support ofover 99% of the party’s membersto be put forward as candidate forPresident of the SpanishGovernment or Prime Minister. Hewas elected chairman of the partyin 1990, serving as leader of theopposition until he became thefourth Prime Minister of theSpanish democracy in 1996, whenPP won 37.6% of overall votes.

An uncertain periodThe 1980s were a culturally and fi-nancially unstable time for Spain.

Before Aznar assumed office, thecountry’s economy was trailing be-hind its neighbours, plagued by anastronomical deficit, chronic unem-ployment and dismal prospects forgrowth. The new Prime Minister setgoals which included furtheringSpain’s involvement in the EU andimproving the economy’s health suf-ficiently to meet the minimum stan-dard for a single monetary system,the euro.

In the process of achieving thesegoals, Aznar is credited with im-plementing rigorous economic andsocial reforms, liberalising themarket and privatising various in-dustries. Under Aznar’s time asPM, the government sold its stakesin Telefónica, Repsol, Enagás,Endesa, Argentaria and Iberia,which lowered its share of thestock market from around 10% in1996 to just 0.52% in 2004. He isfurther praised for maintaininghealthy relations with Spanishtrade unions UGT and ComisionesObreras for the majority of histime as PM.

When appointed, Aznar shockedthe electorate by appointing fourwomen to senior positions in hiscabinet, a move seen as extraordi-narily radical at the time.

It seemed there was no stoppingAznar, and Spain as a result. InMarch 2000 ahead of the generalelection, The Economist reported:“Spain under Aznar is riding high.It is a confident, modern-mindedcountry that fights its corner in theEU with vigour and effectiveness.”It came as no surprise, then, whenhe was re-elected as Prime Minster,this time with an absolute majority.

Over two consecutive terms,Aznar’s policies increased Spain’s

gross national product by 68%,created five million new jobs andpropelled Spain to the eighth-largest economy in the world. ItsGDP grew at an average of 3.4%each year and Spain’s average in-come increased from 78% to 87%of the average EU income.

During his tenure, Aznar at-tempted to strengthen Spain’s tieswith Latin American countries, andadopted a firm policy of not negoti-ating with Basque separatist groupEuskadi Ta Askatasuna (ETA).

Countering terrorism seemed todominate his second term, particu-larly in the aftermath of theSeptember 11 attacks. He also fo-cussed on diplomatic discussionswith Morocco over certain areascontrolled by Spain, as well as withthe UK over its colonial possessionof Gibraltar.

In January 2004 Aznar called ageneral election, and kept his pledgenot to seek office for a third term.Instead he designated his successor,Mariano Rajoy, as PP candidate.

While widely revered for hismany economic and social achieve-ments, Aznar’s tenure was not freeof controversy. He faced heavy do-mestic criticism for close alignmentwith Washington and London inthe Iraq war, sending more than1000 Spanish soldiers to Iraq tohelp the post-war reconstruction.

A practicing lawyer, Aznar’smany accolades include executivepresident of the Foundation forSocial Studies and Analysis, hon-orary chairman of the PP, the firstnon-native English speaking holderof a seat on the board at NewsCorporation, chairman of theFriends of Israel Initiative and

member of the InternationalAdvisory Board of the AtlanticCouncil of the United States andco-chairman of the AtlanticCouncil’s Transatlantic Task Forceon Latin America, among variousother appointments.

He is also a member of Club deMadrid, an independent not-for-profit organisation which pro-motes democracy and change inthe international community, andhas been awarded honorary doc-torates from various universitiesincluding the Florida InternationalUniversity in 1998 and Israel’s BarIlan University in 2010.

Aznar is married to PP politi-cian and former Mayor of MadridAna Botella, with whom he hasthree children.

SESSION

A conversation with...José María Aznar

TIME/VENUE

Today, 1.15 – 2.15pm,Hall E1

Don’t miss former Prime Minister of Spain José María Aznar’s candid conversation with award-winning CNNjournalist Todd Benjamin at lunchtime today

Driver of changePREVIEW

Today’s conversation with JoséMaría Aznar will bemoderated by Todd Benjaminof Todd Benjamin International. Benjamin has spent the past

26 years working as ananchor, correspondent andfinancial editor for CNN,firmly establishing himself as ahousehold name across theworld. He is an award-winningjournalist and has interviewedBill Clinton, Mihail Gorbachevand Alan Greenspan. Thesedays Benjamin worksindependently as a speaker,moderator and interviewer,and occasionally appears onCNN as an analyst. He alsowrites an acclaimed economicand financial blog on theCNN website.

“The 1980s werea culturally andfinanciallyunstable time forSpain”

“While widelyrevered for hismany economicand socialachievements,Aznar’s tenurewas not free ofcontroversy”

“Over twoconsecutive terms,Aznar’s policiesincreased Spain’sgross nationalproduct by 68%”

News V I E NNA8 IBA Daily News

Online streaming platformshave had a profound im-pact on the way we con-sume entertainment. Just a fewyears ago, standard practice was towatch whatever was on, wait aweek between episodes of TV pro-grammes – no matter how gripping– and grin and bear it through theadvertisements.

But a power shift has occurred.Viewers take control of their ownexperience now, deciding what towatch, when to watch it, and whatplatform to watch it on. Many ofus binge-watch seasons of televi-sion programmes in their entirety,fast-forwarding through the ad-verts as we go.

And as is so often the case withtechnological progress, the law hasstruggled to keep up. Regulatorsand policy makers are aware theyare being undermined and don’tknow how to reverse the system.Television licence purchases aredown on the deal, and the system is

becoming harder to enforce as view-ers find a way to dodge the cost.

Today’s session is presented bythe Intellectual Property, Communi-cations and Technology Section andwill look at on demand streamingplatforms and how they have stolenthe audience’s attention from tradi-tional mediums of broadcasting.

“The rise and rise of on demandstreaming providers like Netflixhas changed the entire entertain-ment landscape,” says FrederickChilton, a partner at Emil Ford inSydney, who is co-chairing the ses-sion. “This raises very interestingquestions, for telecom carriers andbroadcasters in particular.”

Speaking at the session isJoachim Hoenig of DeutscheTelekom, Jukka-Pekka Joensuu ofCinia, Wolf Theiss’ Georg Kres-bach, Helena Suárez of Suárez dela Dehesa Abogados, Samuli Simo-joki from Borenius Attorneys andKaisu Karvala, of Rovio Entertain-ment.

Co-chairs Chilton and ClaireKeeley, Corporate Counsel Forumliaison officer of the IntellectualProperty and Entertainment LawCommittee, are hoping for a livelyand dynamic session in whichspeakers will be pressed to considerissues around how online streamingplatforms can be regulated andwhich authorities should be doingso. They will also consider whetheror not there is a requirement for en-forcement at EU level.

The session will be divided intotwo parts. Industry representativesfrom the entire ecosystem ofstreaming and broadcasting willfirst consider the challenges theyface from a business perspective.Then they will discuss the legal is-sues their industry has to grapplewith.

Net neutral“Technology is developing so rap-idly, in some cases faster than busi-nesses and the law can keep upwith,” says Keeley. “We’re seeing abroad conversion from more tradi-tional business models to contentbeing everywhere – what geo-graphic licensing laws can governit?”

Even within the online stream-ing world, further problems pres-ent themselves. Net neutrality,intellectual property rights andgeoblocking all raise issues for de-bate.

Difficulties arise when certainstreaming platforms receive what isseen as preferential treatment overothers. Net neutrality is the inter-net’s guiding principle; it keeps itfree and open, protects and enablesfree speech and ensures equal op-portunities for all who use it.

The term ‘net neutrality’ wasfirst coined by Columbia Univer-sity media law professor Tim Wuin 2003 and has become the sub-ject of a widespread debate.While in the past streaming plat-forms were limited by slow down-load speeds and caps on data,technology advances at an expo-nential rate and so has the appealgrown.

While some stakeholders havecampaigned to abandon the princi-ple, others have fought back.Barack Obama first made a com-mitment to a free and open internetin October 2007. Then, in Febru-ary 2015, the Federal Communica-tions Commission (FCC) voted in

favour of a strong net neutralityrule after receiving overwhelmingsupport from over four millionpeople.

The FCC’s rules pertain thatblocking access to legal content,throttling (impairing the quality ofthe content), and paid prioritisa-tion are all banned under the Com-munications Act and theTelecommunications Act.

Giving one service priority overanother in return for a fee violatesthe internet’s fundamental princi-ples, but for the service providerswith scope to benefit financiallyfrom such activity, it could providethe edge they need over their com-petitors.

SESSION

On demand andstreaming content vsbroadcasting – the nextgreat disruption?

TIME/VENUE

Today, 9.30am –12.30pm, Rooms 1.61 &1.62

COMMITTEE

Presented by theIntellectual Property,Communications andTechnology Section

Online streaming platforms have posed anew threat to traditional broadcasters.Where does the law come into it?

Disruptive entertainment

www.iflr.com NewsTuesday, 6th October 2015 9

Aflurry of new luxury hotelshas opened in Vienna inthe past few years. Restau-rants and bars have followed suit,upping the city’s culinary game forboth residents’ and tourists’ benefit.

Vienna boasts 94 recommendedrestaurants in the Michelin Guidefor main cities of Europe. Here’s arundown of some of the best.

Steirereck, given two stars bythe aforementioned Michelin re-viewers and considered one of thetop restaurants in the world bymany others, would be a good –and luxurious – starting point.Chef Heinz Reitauer reinterpretstraditional Austrian cuisine in abeautifully remodeled 20th-cen-tury dairy building in the middle ofthe Stadtpark on the banks of theRiver Wein.

Its main courses are highly rec-ommended, but nearly everyrestaurant review mentions its ex-traordinary cheese selection; dinershave over 120 options. For aslightly more casual option, sisterrestaurant Meierei is next door; it’s

known for its brunch menu, cheeseselection and its goulash.

A new and equally photogenicrestaurant is the Clementine imGlashaus, which opened in 2014 inthe Palais Coburg. Also given twostars by Michelin, it is located in thepalace’s former greenhouse – a glasshouse, as its name suggests. Therestaurant is open for all three meals

– and afternoon tea – but it’s idealfor breakfast on clear days due tothe picturesque views around it.

The palace is also home to theSilvio Nickol Gourmet Restaurant,which was also awarded twoMichelin stars and is known forboth its excellent cuisine but also its

wine list, which boasts over 5,500wines.

For those interested in enjoyinga performance, the Albertina Pas-sage is a dinner club at the ViennaState opera. Located in a formerpedestrian underpass, live jazzmusic is played daily, although itsmusic programme is taken over byDJs later in the evening.

A cheaper option is the BitzingerWürstelstand, a bratwurst take-away kiosk located under the Al-bertina Palais Museum known forits take on the Austrian classic, aswell as its distinctive design.

If you aren’t heading to a con-ference event in the evenings, thereare a number of bars from whichit’s possible to take in the city’sbeautiful architecture. The RitzCarlton’s L-shaped rooftop bar, At-mosphere, boasts views of St.Stephen’s Cathedral, Karlskircheand the hills of Ottakring andKahlenberg. Another popular op-tion for a view of St. Stephen’sCathedral is Hotel Lamée’s CaféBar Bloom, on the ninth floor ofthe hotel; it offers stunning viewsof the cathedral’s ornate geometricroof patterns. The Sofitel’s Le Loftis not an outdoor bar, but thevenue, located on the top floor, of-fers floor-to-ceiling views of thecity and has a mural ceiling.

Vienna is known for its coffee-houses, which will undoubtedly behelpful after long and late net-working events throughout the

annual conference; most also servefood and drinks, and are open allday. Some Viennese coffeehouseswere frequented by famous writ-ers and musicians, and those stillexist today.

For example Café Central, inthe Innere Stadt district, opened in1876, and retains its notable archi-tecture, including vaulted ceilingsand decorated marble pillars. Itwas frequented by Leon Trotskyand architect Adolf Loos; Trotskyand Vladimir Lenin were also reg-ulars in the 1910s. Sigmund Freud,another famous Viennese resident,favoured Cafe Spérl, which is inthe Mariahilf sixth district of Vi-enna and is on the country’s regis-ter of historic places. And artistGustav Klimt, most famous for hispainting The Kiss – on view in thecity’s Belvedere Museum – fre-

quented Café Museum, originallydesigned by Loos.

Another famous coffeehouse, theCafé Landtmann, was also fre-quented by Viennese luminaries. Butit is best-known for its location onthe ground floor of the PalaisLieben-Auspitz, near the FederalChancellery, the University of Vi-enna and other landmarks. It re-mains popular with politicians,officials and journalists.

There is also the Palmenhaus, lo-cated near the Albertina Palais Mu-seum, another former greenhousethat offers gorgeous views of thecity. The Jugendstil palmhouse wasoriginally built in 1901, but wasclosed to the public in 1988. Tenyears – and $17 million – later, thecafé reopened with 15-meter highconservatory-style ceilings and ex-otic plants living among diners.

What to eatin Vienna

“Diners at theSteirereck haveover 120 cheeseoptions”

The Clementine im Glashaus in the Palais Coburg

News V I E NNA10 IBA Daily News

In 1945, following a war that de-stroyed huge swaths of Europeand Asia, world leaders cametogether to form an organisationcommitted to global cooperationand engagement. The five leadingcountries of the time took positionsas permanent members of one pillarof that organisation, dedicated toensuring peace was maintained.

Though the international land-scape has experienced significantshifts since then, the mandate ofthe United Nations Security Coun-cil to maintain international peaceremains the same.

But with a global refugee crisismounting and violent conflicts con-tinuing to overwhelm parts of theMiddle East, Africa and Europe theability of the group to meet this di-rective has become unclear. Seventyyears after its creation, the SecurityCouncil and particularly its fivepermanent (P5) members of theUS, UK, China, Russia and France– are falling under increasingscrutiny not just for failing to pre-vent conflict, but inciting somethemselves.

If it continues its trend of inac-tion both the Security Council’s rel-evance and the safety of theinternational system could fallapart.

“When the Berlin Wall camedown we hoped that the situationin Europe would change and therewere positive developments in thebeginning,” says Hans Corell, for-mer legal counsel of the United Na-tions. “But now things have gone

wrong. The situation in Ukraine isparticularly serious.”

Corell will chair the IBA HumanRights Institute’s (IBAHRI) show-case ‘The UN Security Council and

human rights’ today, which will ex-amine whether the Security Councilis living up to its mandate and howthis potential failure is leading tohuman rights tragedies. Corell willbe joined by Kofi Annan of the KofiAnnan Foundation, who will offer

unparallelled insights from his timeat the UN and beyond.

“My hope is that the panel willhighlight the duties of the SecurityCouncil and discuss to what extentthe Council performs as we havethe right to expect,” Corell tells theIBA Daily News.

Failing by example Violations of the UN’s own charterby permanent members of the Se-curity Council have underminedthe organisation’s ability to act anddeter warlords and dictators.

The 2003 US-led invasion intoIraq, supported by the UK andRussia’s attack on Georgia in 2008and annexation of Crimea in 2014serve as examples of the P5’s fail-ures to obey the international lawsthey were tasked with protecting.

A lack of democracy and pro-tection of the rule of law meansthat even in countries not experi-encing outright war, citizens maystill fear violence and a constantviolation of their human rights.

The panel plans to look into theimpact of both big conflicts andsmaller instances where earlier in-tervention or assistance could haveprevented human tragedy.

The plight of the refugees andmigrants pouring into Europe islikely to be top of the list for ex-amples used by the panel. The cri-sis is the largest Europe hasexperienced since World War II

and panellists and audience mem-bers may draw connections be-tween the present day issues andthe ones that led to the creation ofthe Security Council.

Persistent concernsOne persistent issue that has plaguedthe body since its inception is theveto power given to the P5. When itwas first created UN members in-cluding Australia pushed to have re-striction on the use of veto, butfailed to get the resolution votedthrough. Today the use of veto poweror its anticipated use has preventedthe UN as a whole from taking onwhat some feel would have beencritical action to prevent conflict.

Corell and others have proposedlimiting the use of the veto and re-quiring P5 members to only use it inthe event of security risks or explainpublicly the reason for using it.

The most important changethough is not to the structure or tothe mandate of the Security Council.It is the behaviour of all the mem-bers, but most importantly the P5that needs to be addressed if realchange and a focus on sustained in-ternational peace are to come about.

Without this change membersof the international communitywho have less prominence in theUN may look for an alternativebody to uphold the standards itwas first created to maintain.Corell cautioned that for the P5this could mean a new systemwhere they have less power andlegal mandate to act.

SESSION

IBAHRI SHOWCASEThe UN Security Counciland human rights

HOSTED BY

HRI – Human RightsInstitute – (Lead) InternationalOrganisationsSubcommittee

TIME/PLACE

Today, 2.30pm – 5.30pm,Hall F1

“Hans Corell willbe joined by KofiAnnan”

Can the SecurityCouncil live up toits mandate?

News V I E NNA12 IBA Daily News

In 2010, IBA executive directorMark Ellis was approached bythe UK broadcaster, Channel 4to verify what news producersthere believed to be videos of warcrimes committed at the end of theSri Lankan civil war.

The conclusion to the 26-yearlong conflict had become particu-larly violent. There were reports ofwar crimes committed by the gov-ernment against the civilians inrebel-controlled areas as they beganescaping the South Asian island. Theaccusations persisted even after theconflict officially ended, with claimsthat the government confined nearly250,000 civilians in camps and exe-cuted surrendering rebels.

After watching the footage, Elliswas left in no doubt that the videodepicted war crimes. But he alsorecognised that the problems facedby the journalists in authenticatingthe video would pose the samechallenges if lawyers ever wantedto use the video to hold these crim-inals responsible.

Over the course of the comingdays and weeks Ellis began to searchfor videos of other atrocities on

news outlets and social media. Hefound that even those that gainednotoriety and brought attention toterrible situations faded from circu-lation and public consciousness,mainly because of an inability toverify their authenticity. “I wanted

[to create] something that wouldn’tjust shine a light on atrocities, butcould really bring justice,” says Ellis.

Authentication Determining when, where and bywhom a video was shot are the mostimportant factors for journalists try-ing to authenticate a video or photothey have not taken themselves. Forlawyers the bar is set slightly higherbecause of the need to establishchain of custody, to prove the videohas not been tampered with.

This was the main challengefacing the creators of the eyeWit-ness to atrocities app. They beganby outlining the key facts a courtneeds to accept a video or photo assubstantial evidence.

They acted under the assump-tion that the person who shot the

video would not be available totestify, so they needed a way to re-ceive this information at the sametime they received the image.

The creators came up with a setof markers that would be embed-ded in the metadata of the photo or

video file, which would convey thedate and location, along with in-formation about whether the filehad been edited or tampered with.

“This creates a mechanismwhere videos can be filmed, sentand used as evidence,” explainsEllis. “We don’t even need to knowwho is taking the video, embeddedis all the information needed to usethe video as evidence.”

This embedded data includesthe GPS signal, locations of Wifitowers, the time and date as well asinformation on whether the file hasbeen doctored or if attempts havebeen made to doctor it.

Once they have shot the video,users can choose to add informa-tion, such as who the people cap-tured in the video are, what they aredoing and if they are military per-sonnel. This information is all op-tional and is not admissible in court,but it can help prosecutors down theline as they try to mount a case.

The video is stored in a secureserver, which the eyeWitness teamcalls a virtual evidence locker. Ateam of lawyers supported by theIBA will sort through the files todetermine which ones the groupshould advocate for, which to sendto authorities including war tri-bunals and which should be sent tonews outlets for public broadcast.

Even when IBA lawyers go

through the videos they will belooking at copies. This ensures thefiles are never tampered with andthe chain of custody is alwaysclear.

While the videos themselvesmay be secure, the individuals

shooting them remain in very dan-gerous situations. For Ellis themost important assurance he couldoffer these people is that the infor-mation they send in will be pro-tected and available to prosecutewar criminals.

“This app allows the people put-ting their lives at risk to havegreater security and know the videothey have just taken can be used ina court proceeding without havingto be there to testify,” Ellis says.

But Ellis didn’t want to leavethose shooting the videos unpro-tected. To safeguard both the dataand the users, the app includes afeature that separates the photosand videos taken on it from thephone’s regular digital gallery. If thephone is confiscated the images can-

not be seen by unwanted or threat-ening parties. The app can also befully deleted from the phone.

“People are going out to filmthese atrocities anyway,” Ellis ex-plains. “Millions of videos arebeing launched. Our view is if you

are going to put yourself at risk wewill give you a mechanism to helpyou do it securely.”

The goal of the team since thelaunch of the app in June has beento get more people to downloadand use it. They have partneredwith non-governmental organisa-tions and other groups in conflictzones to spread the word aboutthe app and how it works.

At a time when social mediaand citizen journalism are becom-ing more relied upon to captureevents that larger outlets are notable to, Ellis and his team hopetheir new app will do more thanjust shine a light on these atroci-ties. With the use of the eyeWit-ness to atrocities app they feeljustice can be served.

An app to fight atrocitiesKey takeawaysThe IBA has released its eye-•

Witness to atrocities app whichwill help individuals capturevideo and images of warcrimes;The data is being captured•

and stored in such a way topreserve the authenticity of thefootage so it can be used incourt proceedings;The app also includes fea-•

tures that will protect the datawhile it is on the phone by stor-ing the images in a separategallery and being easy forusers to delete.

“This creates a mechanism wherevideos can be filmed, sent and usedas evidence”

“I wanted [to create] something thatwouldn’t just shine a light on atrocities,but could really bring justice”

News V I E NNA14 IBA Daily News

QUESTIONWhat should the IBA’spriorities be in 2016?

Fernando BedoyaWurth Bedoya CostaduRels AbogadosBolivia

Increasing the value for law firmsand individuals coming to the IBA.We pay very close attention to the

IBA but in other firms in Bolivia you don’t see thatmuch involvement. Bolivia is an interesting marketand there is an opportunity for the IBA.

Minna MelenderFinnish Bar AssociationFinland

Young lawyers, because they are thefuture of the profession. We are, ob-viously, getting older and the young

lawyers will continue to practice and build interna-tional networks. We need to strengthen their idea ofwhat it is to be a lawyer.

Malene StadilDanske BankDenmark

Financial markets. There is too muchon challenging the glass ceiling andhuman rights because they have little

legal evolutions. But the world is getting smaller,there is conduct risk and a lot of deal risk that finan-cial institutions have to adhere to.

Ranjit MalhotraMalhotra & Malhotra AssociatesIndia

From the analytical and powerfuldebate we had on Sunday at theopening ceremony on migration

issues, I think the time has now come for the IBA toplug in for a convention on migration andpotentially refugee redistribution reorganisation.These are new generation issues.

Ahmed Goniri MustaphaAttorney General of Yobe StateNigeria

As a person coming from a crisisarea that has to deal with terrorism Ithink the IBA should focus on terror-

ism and corruption. I am interested in the sessionwith ICC prosecutor Fatou Bensouda; an excellentinitiative that will benefit those of us coming fromareas such as mine.

Amr EldibEldib Attorneys at LawEgypt

The IBA is covering good aspects butI would be interested to see moreemphasis on the profession itself and

on the management of law firms. There should beeducation sessions to exchange experiences be-tween top management in different firms, especiallynow as bigger firms are taking over smaller ones.

Andrés GodoyLittler MendelsonColombia

Globalisation. The legal industry isin the middle of being globalised,with big firms starting to spread all

over the world and small firms joining them. Weneed to figure out what the best way of managingthis and how the industry is going to behave in thecoming years.

Rita MakarauJudicial Services CommissionZimbabwe

A few more sessions dedicated tojudges’ forums. I know this is forlegal practitioners but judges are

also legal practitioners and it is important for the IBAto attract more of them. The general sessions aregood but they could focus more specifically onjudges.

Increased regulation and harsherpenalties for corruption are con-tributing to the general declinein foreign investment into LatinAmerica. That was the messagefrom members of the panel on‘Cross-border deals between LatinAmerica and European companies’yesterday morning.

Foreign direct investment intothe region as a whole fell by 16%in 2014 from the previous year. Onthe surface, the region’s economicdependence on commodities suchas copper, gold and oil, the pricesof which have been decliningsteeply, and a general economicslowdown in Latin American andChina are to blame.

Delving deeper, there are socialand cultural issues which are mak-ing investors hesitant. Some ofthese challenges are obvious andcertainly not unique to those famil-iar with Latin America: corruption,political instability and cultural dif-

ferences, to name a few. A more re-cent and less typical developmentwhich is making investors uneasyhas been the increased focus oncompliance and regulation, and theincreased risk of being penalised.

Senior managing director ofControl Risks and head of itsBrazil branch, Geert Aalbers, said:“The reality in Latin America isnot that there’s more corruption

than there’s ever been. There hasperhaps even been less.” However,he argued that when viewed froma risk perspective, there are twothings that matter: the probabilityof getting caught and how much itwill hurt?

Local authorities are taking afar more proactive approach toregulation and enforcement –Brazil and Colombia have both im-

plemented anti-corruption legisla-tion – and if there is any inertia orreluctance locally, US authoritieswill ensure an investigation takesplace. “The probability of gettingcaught nowadays, with step-up en-forcement and Foreign CorruptPractices Act (FCPA) enforcement,is higher than it’s ever been. Thewhole notion of impunity is start-ing to fade away. If we look atother types of enforcement acrossthe region such as antitrust, thepenalties are incredibly high evenby Europe or US standards, and weare seeing anti-corruption legisla-tion move in that direction,” saidAalber.

Miami-based DLA Piper corpo-rate partner, Francisco Cerezo,also highlighted the way FCPAregulation has encroached on in-vestment into the region. “Eventhe most ethical and honest play-ers who are abiding by their coun-try’s laws may fall foul of FCPA,”said Cerezo. He argued that theregulations may not be as dracon-ian as some believe but they canbe significant and rigorous enoughthat, depending on the size, com-panies may need a dedicated com-pliance officer. “I’ve seen clientswalk away,” he added.

Proceed with caution when in-vesting in the region was the over-riding message of the panel. Indeals where a counterparty is sub-ject to FCPA, a Latin Americanseller, which may not by law be re-quired to be compliant with theregulation should not commit to

meeting its guidelines. “When I’mon a sell-side of a transaction rep-resenting a Latin American clientand a big US company comes inasking for all sorts of FCPA reps, I

would encourage them to agree amore reasonable representation.Say that you are not in violation ofany anti-corruption laws in yourcountry or that apply to the com-pany,” explained Cerezo.

Key takeaways FDI into Latin America fell by•

16% in 2014, according topanelists at yesterday’s sessionon cross border deals betweenLatin American and Europeancompanies. The region as a whole re-•

mains high on the corruptionindex Companies should not com-•

mit to meeting FCPA require-ments without properlyunderstanding the risks

“Even the mostethical and honestparty may fall foulof FCPA”

Corruption penaltiesdeterring LatAminvestors

Francisco Cerezo and Geert Aalbers

www.iflr.com NewsTuesday, 6th October 2015 15

Ryuichi NozakiAtsumi & SakaiJapan

Developing lawyers in emergingmarkets such as in Asian countries,Africa and Latin America. There

has to be equality of professionalism. If you look atlawyers in Japan, the US or the UK they are profes-sional but this varies in other countries and it cancreate difficulties.

Dian IvanovIvanov & PartnersBulgaria

The IBA should focus on younglawyers. It is becoming increas-ingly difficult for young lawyers to

proceed in the legal profession. The IBA could be-come more involved in academies and in educa-tion with students because it is more and moredifficult for people to find jobs.

Uroš IlićODI LawSlovenia

Connectivity. We are becomingsmaller and no organisation canavoid it. Rule of law has certainly

been a focus but in some countries we still see it asan issue. The changing of the landscape due to im-migration, and from an environmental perspectiveglobal warming, are also crucial.

An internationally universal approach to insolvencyproceedings is still a distant illusion, according topanelists at yesterday’s session ‘Preparing for thenext crash: a UN insolvency Convention, EU amendmentsand national law reform’. After 55 years of work – the firstattempt dates back to 1960 – it has not even been possibleat an EU level, with member states having arrived at a stateof so-called modified universality instead.

Modified universality refers to the idea of managingcross-border insolvencies in the interest of internationalcomity. Its provisions allow member states to assess whetherdecisions made by overseas courts are consistent with theirown findings at their own discretion.

Full universality has not been achieved within the EU be-cause that enforcement would require a treaty or convention– which requires all states to agree. When the 1995 Conven-tion on Insolvency was proposed, the UK would not sign it,explained Ondrej Vondracek, legal and policy officer at theEuropean Commission, so it was introduced as a regulationinstead.

That regulation has been recast this year with a broad-ened scope, a new framework for group insolvency proceed-ings and interconnected insolvency registers, among otherprovisions. While this is undoubtedly a step forward, theCommission will continue to work towards the universalismprinciple, said Vondracek.

The need for universality only increases as business be-comes more international. The insolvency of Lehman Broth-ers was held up as the ultimate example of why we must

strive towards it: the firm filed 76 insolvency proceedingsacross 16 jurisdictions. “What had been an integrated enter-prise became individual entities battling for assets, whichtook seven years to resolve,” said James Giddens, a partnerat Hughes Hubbard and Reed who was appointed trustee ofthe Lehman estate, adding that a universal convention wouldhave been far more economically efficient.

Insolvency’s distantillusion

Ondrej Vondracek