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DAILYNEWSWASHINGTON DC WEDNESDAY, SEPTEMBER 21ST 2016 WEATHER 27°C

MARK ELLIS INTERVIEWLong-serving executivedirector looks back on thebody’s achievementsPAGE 9

HUMAN TRAFFICKINGEfforts to tackle it are hinderedby the lack of a coordinatedresponse on corruptionPAGE 7

A GLOBAL PROBLEMHow can the legalprofession maintain itsindependence? PAGE 8

#ibawashingtonJ 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

Continues on page 3

Former British foreign secretary JackStraw has explained why he believesBritain voted to leave the EU, and

laid some of the blame at the door of theEuropean Commission.

In an opening speech in yesterday’s ses-sion ‘Brexit or bust? Better together or theend of Europe as we know it?’ Straw, whocampaigned for the UK to remain in theEU, argued that many Brits never felt emo-tionally attached to the idea of a union. “Ithas always been seen as a transactional re-lationship,” he added.

Straw criticised the viability of the eurocurrency. “A single currency beyond a sin-

gle country was inherently unstable,” hesaid. “Breaking up the euro would be anunimaginable nightmare but there needs tobe some honesty – particularly from thosein the EU – about the monumental error ofits creation,” added Straw.

Straw explained that as the UK movedfrom being the so-called sick man of Eu-rope in the 1970s to one of its most suc-cessful economies – with unemploymentlevels in the country now at 4.9% com-pared with the eurozone’s 10.1% – mem-bership became an increasing burden onthe country.

He reserved particular scorn for Jean-

Claude Juncker, President of the EuropeanCommission, citing his statements duringthe Brexit campaign as damaging.“Juncker probably lost the Remain cam-paign more votes than any other figure.Every time he spoke, you could see votesfor the Remain campaign drain away,”said Straw.

Moving onto the fallout from Brexit,and the long process of negotiating a newrelationship between Britain and the EU,Straw said that the UK’s vote to leave theEU will not result in materially improvedimmigration controls.

The most potent argument in favour ofleaving the EU was about taking back con-trol of immigration. “But we will go onneeding migration for lower skilled jobs.And there is an understanding that we willcontinue to welcome highly skilled work-ers too,” said Straw.

Formal negotiations between the UKand the EU cannot begin until Prime Min-ister Theresa May invokes Article 50 andstarts the corresponding two-year process,which UK Brexit Secretary David Davis

Jack Straw:Brexit’s hard truths

The International Criminal Court(ICC) has used untested evidencegiven by anonymous sources, ac-

cording to a speaker at yesterday’s panel‘Seventy years after the judgment at Nurem-berg – has the US failed to support interna-tional justice at the ICC?’

“There is no transparency whatsoeverand so we don’t know how prosecutors atthe ICC make their choices,” said CarolineBuisman, ICC defence counsel in the Hague,the Netherlands.

Buisman has been involved in two high-profile cases, the Katanga case involving 24-year-old Congolese warlord GermainKatanga convicted of war crimes committedin the Democratic Republic of Congo andthe Ruto case on post-election violence inKenya.

She pointed to a pattern showing the ICCapproaching easy targets not chosen by theprosecutor’s office, which instead relies onother institutions, such as NGOs, to carryout the investigation.

The ICC defence counsel alluded to theKatanga case, in which the evidence submit-ted by the prosecutors was overlooked infavour of unverified evidence pointing to thedefendant’s recruitment of child soldiers.This turned out to be false as, according toBuisman, the defence team found evidenceshowing that they had lied about their ageand were not child soldiers.

“If you look at the two cases, there is ab-solutely no logic to it and African states arevery unhappy with the ICC,” said Buisman.But she added that, in most cases, some ofthese states had called on the ICC to intervene.

ICC in the dockContinues on page 3

Gregory Kehoe, co-vice chair of theWar Crimes Committee.

RobertHolleyman P2

Robert MuellerP14

Jack Straw

News WA S H I N G T O N D C2 IBA Daily News

US Ambassador RobertHolleyman has warnedagainst delaying the

Transpacific Partnership (TPP), aregional free trade deal led by theUS and involving 11 other coun-tries. The alternative is that othercountries in the region set the rulesfor trade – and gain the strategicupper hand.

In addition to the US, the part-ner countries to the TPP are Japan,Malaysia, Canada, Mexico, Chile,Peru, Vietnam, Singapore, Brunei,Australia and New Zealand. Asthings stand, those countries col-lectively represent 40% of globaleconomic output. With the excep-tion of Vietnam, they are also vitalallies of the US.

“We have a choice. And thatchoice is very simple. Either we canreiterate our commitment to ourpartners and our allies or we canforce our partners and allies tolook elsewhere,” Holleyman said,speaking at the IBA’s Tuesdaymorning keynote address on trade.

In this context, ‘elsewhere’ canonly mean Beijing, a reality thatisn’t lost on countries in the APACregion as they search for indica-tions of whether the future will beAmerican-led.

“Many of our allies look to TPPas a demonstration of the US com-mitment to remain engaged at acritical time in a region that is bothgrowing and in flux,” Holleymansaid.

For now, the US isn’t fighting alosing battle. Three of the US’sclosest partners in the TPP –Japan, Australia and Singapore –are, according to the ambassador,particularly instrumental in ad-vancing the notion of a peaceful,transparent rules-based regime inthe region. But the time to act isnow.

“Fundamentally today we’refaced with a question about the di-rection of the global economy,”Holleyman said. “The longer wedelay, the further less-open trademodels advance.”

Competing futures Looming large in the American,and global, consciousness is the2007/8 global financial crisis,which demonstrated how quicklyconditions in one sector can flowthroughout the US and, from there,to the rest of world. The answer tothat disaster has, however, been arecovery in global trade. By 2010-11, the strength of World Trade

Organisation rules and the UnitedStates’ existing free trade agree-ments had helped open world mar-kets to US exports.

Learning from the history of fi-nancial and economic crises, Hol-leyman says a primary goal of theObama administration has been tonegotiate trade agreements. ButAmbassador Holleyman was alsokeen to stress it’s not just the dimesand cents at stake.

“The administration’s decisionto negotiate the TTP and Transat-lantic Trade and Investment Part-nership [TTIP] was not drivensolely by economics,” he said.

Instead, two additional forcesare at play. First, the fundamentalAmerican belief in strengtheningthe international trade systembased on high-value trade agree-ments is something that should

strengthen the US’s global strategicposition, while also promoting theglobal rule of law. Second, there’scompetition. If the US doesn’t stepup to the plate, particularly withthe TPP, other regional competitorswill.

“I want to make a strategic casefor TPP and how it will promoteexisting alliances, and the rule oflaw throughout the region,” Hol-leyman said.

Elephant in the room The world’s second-largest econ-omy is busy negotiating its own re-gional trade agreements, whicharen’t likely to have the same highstandards on labour, the environ-ment, investor protection, IP rightsand transparency.

“Knowing there are competingmodels, it’s critical the high stan-dard TPP becomes the template forregional integration,” Holleymansaid. By way of contrast with thisalternative vision, the TPP willwork to promote transparency,fight corruption and help end dis-putes.

Two US domestic hurdles re-main to be crossed. The first isCongress, which must now ap-prove the proposed trade deal. But

the other is the state of domesticpolitics more widely in the US.Both candidates in the 2016 presi-dential election have raised ques-tions over America’s participationin global free trade agreements. Inaddition, there’s also a hardcoredissent to both the TPP and its pro-posed sister agreement with theEU, the TTIP. That dissent focuseson how the agreements featureprovisions for investor-state dis-pute settlement (ISDS) which, dis-senters argue, favour big businessover sovereign states and govern-ments. Holleyman, however, ishaving none of it.

“ISDS is consistent with theAmerican legal tradition and,moreover, the US has been at theforefront of improving the ISDSsystem,” he said.

In short, his message is simple:the time for the US to ratify TPP isnow.

Key takeawaysUS Ambassador Robert Hol-•leyman has warned againstdelaying the TranspacificPartnership;The regional free trade deal•is led by the US and involves11 other countries;The alternative is that other•countries in the region set therules for trade – and gain thestrategic upper hand.

Warning on TPP delay

Don’t delay TPP

www.iflr.com NewsWednesday, 21st September 2016 3

has insisted will be triggered without aparliamentary vote.

Caroline Vicini, deputy head of delega-tion of the EU to the US explained that theso-called divorce proceedings between thetwo parties will be arduous, largely be-cause of uncertainty surrounding the UK’swishes.

“No one knows what will happen,” shesaid. “Not even the Brits know what theyare aiming for. No one has heard any sort ofvision as to where the UK will end up,”added Vicini. “It is impossible to say how wewill respond to a negotiating position thatwe cannot even fathom. Because we don’tknow what the UK wants,” said Vicini.

Offering a perspective from the corporateworld, Alexander Ritvay, partner at Noerrin Germany was more positive. “It’s not the

end of history. We have to get over it. Brexitmight even have a positive impact.”

Ritvay noted the rise in interest in UKcompanies from foreign buyers, specifi-cally Asian companies looking to positionthemselves in the UK. He also said thatchoice of law clauses are unlikely to bedrafted in English law for the time being.“I don’t think it will last but it is the casefor now.”

The panel featured perspectives fromremaining EU jurisdictions. Oana Bizgan,chief of staff in Romania at the Depart-ment of Trade and Investment explainedthat Central and Eastern European coun-tries had long debated their relative posi-tion within the EU. “We worked so hardto get in and now the UK is leaving wedon’t understand why. We have more tolose in this divorce than we have to gain,”she said.

Key takeawaysStraw cited Brits’ lack of emotional at-•tachment to the idea of a union, thesingle currency and taking back con-trol of immigration as some reasonswhy Britain voted to leave the EU;

The outcome of the UK’s Brexit deci-•sion is uncertain, for now;

Other speakers insisted the divorce•proceedings between the two partieswould be arduous, largely because ofuncertainty surrounding the UK’swishes.

Buisman also discussed the procedurestaken by the ICC to render a verdict, ex-plaining that judges often intervene by car-rying out cross-examinations driven bytheir own political agenda.

She argued that this practice is, in itself,a real problem because any piece of evi-dence can be admitted while pointing toclear rules on the admission of evidence byUS courts.

“You can have thousands of pages of ru-mours, hearsay, some of which is anony-mous, as evidence,” she said. “You have togo through all that and find a piece that isactually relevant, and it’s really hard to testthat, but it is relied upon by the ICC,”added Buisman.

The US approachDriven by the concern that its soldiers couldbe subject to ICC scrutiny, the US has longtaken the view that its domestic processesare adequate to address war crimes commit-ted by its own soldiers.

Colonel James Schoettler, adjunct profes-sor of law at Georgetown University LawCenter in Washington DC, while agreeingthat the US should consider joining the ICC,argued that the country has put in place acomprehensive manual for all military serv-ices.

When asked if the US would still be sub-ject to the ICC’s conduct if a US solider wason trial, Buisman insisted that there is noth-ing the US would be able to do. She used the

Ruto case in Kenya, for which the presidingjudges relied on anonymous intermediaries.Buisman pointed out that they recruited in-dividuals familiar with one another and ableto concoct the evidence to then be submittedto the ICC.

She added that the judges simply took forgranted witness testimony given to the pros-ecutors by unknown third parties.

But Schoettler said that he didn’t believethat individual soldiers would be broughtbefore the ICC. This is because of clauses inthe ICC treaty stating a case will only bebrought before the ICC if the country thatwould have jurisdiction over the crime in thefirst instance is unwilling and unable to takethe case.

Continued from page 1

Continued from page 1

Key takeawaysThe ICC has used untested evidence•given by anonymous sources, accord-ing to a defence counsel;The ICC’s procedures were also criti-•cised for the manner in which they ren-dered verdicts. Panellists said judgesoften intervene by carrying out cross-examinations driven by their own polit-ical agenda;The US’ relationship with the court was•also discussed. The country has longtaken the view that its domesticprocesses are adequate to address warcrimes committed by its own soldiers.

“Juncker probably lostthe Remain campaignmore votes than anyother figure” Jack Straw

News WA S H I N G T O N D C4 IBA Daily News

Lateral hires are at an all-time high, up by over onethird since the post- finan-

cial crisis recession. They are alsocosting more money than ever –a study conducted by ALM LegalIntelligence estimates new part-ner hires in the US cost firms inexcess of $1.3 billion in compen-sation alone every year.

The lawyer movement busi-ness may be an industry in itselfbut it also raises some wide-rang-ing ethical, contractual and regu-latory questions. Who does theclient belong to? What are a

lawyer’s duties and rights whenleaving a firm? These were someof the questions asked by speak-ers at yesterday morning’s “De-partures from and lateral hiresinto law firms” panel session.

“It depends if you’re talkingwell-developed, highly-regulatedlegal markets or less regulated ju-risdictions where law societiesdon’t have a tremendous amountof power,” said Martin Kovnats,partner at Aird & Berlis and co-vice chair of the ProfessionalEthics Committee. “The rules aremuch more like the wild west inthe latter.”

Who does the clientbelong to?When leaving for a new firm, alawyer may be tempted to takewith him the clients he has spenttime and money developing a re-lationship with. This is all welland good but it’s not a straight-forward matter.

According to CarlosDominguez, partner at HoetPelaez Castillo & Duque, and co-chair of the Latin American Re-gional Forum, the lawyer has noproperty rights over the client,not only in his native Venezuela,

but more generally in the LatAmregion and globally. As such, thefees accrued during the renderingof legal services belong to thefirm, and the departing lawyerhas no basis on which to with-hold them.

“The client has final decisionover what to do but I do considerthat the firm has a better rightcompared to the individuallawyer,” he told delegates.“There may however be somefactors influencing the client’s de-cision – the lawyer’s unique ex-pertise and who brought theclient in.”

The sentiment was echoed byRachel McGuckian, principal atMiles & Stockbridge, and co-vicechair of the Professional EthicsCommittee. “The individual part-ner holds the relationship on be-half of the firm – that’s the rule,”she confirmed, although con-ceded that when asked the ques-tion of who their lawyer was,clients tended to respond with thename of an individual or a groupof people.

Duties and rightsIn most regulated jurisdictions,such as the UK, US or Canada,

the departing partner has strictduties towards their old firm –these can be contractual or regu-latory. While ethical considera-tions are the same de facto in lesssupervised areas, in practice,things may be different.

In the US, whatever the con-duct of lawyers and firms, theyhave to act in the best interests oftheir client who has an absoluteright to choose their counsel.

This means that legal practi-tioners and their firms need to beclear and transparent about theirmovements and their duties, co-operate with the client and witheach other, and not defer or waitto transfer any work, whichcould cost time or money. Thismeans informing their law firmof their intention to leave beforeinforming their client.

Harvey Cohen, partner atDinsmore & Shohl, and seniorvice chair of the Closely Held andGrowing Business EnterprisesCommittee, said his firm carriesout background and credit checkson prospective hires to ascertainif they have previously been in-volved in any regulatory duties orethics violations.

However, Alberto Navarro,

partner at Navarro Castex Abo-gados in Argentina and co-chairof the Professional Ethics Com-mittee, said that weak bar associ-ations and a lack of sanctions inthe case of legal duty violationsin South America mean that mat-ters tend to be solved on a case-by-case basis.

“There have been cases wherea partner goes and takes 20 asso-ciates with him, and it was nearimpossible for the old firm to doanything,” he said. “You couldargue that these were cases of un-fair competition, but commerciallaw principles don’t apply to thelegal profession.”

Key takeawaysThe individual partner holds•the relationship on behalf ofthe firm;

The client has an absolute•right to choose their counsel,and nothing can impair that;

In most regulated jurisdic-•tions, the departing partnerhas strict duties towards theirold firm but the situation isless defined in countries withless oversight.

A guide to lateral hires

“The client hasfinal decision overwhat to do”

Today’s session tackling national secu-rity concerns, privacy and press free-dom is particularly significant given

the location of this year’s IBA. Since appear-ing in Boston in 2013, Japan in 2014 and Vi-enna in 2015 this year’s debate takes place inWashington DC, the backyard of the US in-telligence and security establishment.

The session will be particularly prescient,given the number of recent confrontations be-tween the US government and internet com-panies in the context of terrorist and criminalinvestigations and the recent Panama Papersleak. Apple’s refusal to help the FBI hack aphone used by a terrorist in the SanBernardino attack and a court victory by Mi-crosoft rejecting a government order to handover customer emails stored on a serverabroad will be on the table.

Perennial hosts Robert Balin from DavisWright Tremaine (US) and Mark Stephensfrom Howard Kennedy (UK) have gatheredan impressive panel. Representing the na-tional security perspectives are Robert Litt,general counsel of the Office of the Directorof National Intelligence (ODNI) and SusanHennessey, a former National SecurityAgency (NSA) lawyer and fellow in NationalSecurity in Governance Studies at the Brook-

ings Institution who also edits the Lawfareblog.

On the side of the press is Gillian Phillips,the chief media lawyer at the Guardian; thenewspaper that published the NSA docu-ments leaked by Edward Snowden, the Wik-iLeaks state department cables and thePanama Papers.

Delineating the position that global inter-net companies find themselves in when gov-ernments request information on privatecitizens will be Steve Crown, deputy generalcounsel at Microsoft. Academia will be rep-resented by David Schulz, a media lawyer andco-director of the Media Freedom and Infor-mation Access (MFIA) Clinic at Yale LawSchool.

Delicate balancing actA number of cases have recently sharpenedthe debate between national security needsand the principal of safeguarding privacyagainst a snooping state.

One of the most intriguing has been the in-vestigation into the San Bernardino shootingin December 2015, which killed 14 peopleand seriously injured 22. Apple refused to cre-ate software that would allow the FBI to hackan iPhone 5C owned by San Bernardino

County which had been issued to employeeSyed Farook, one of the attackers. Shortly be-fore the court case pitting the FBI againstApple the FBI withdrew, announcing that ithad hacked the phone without Apple’s help.The FBI had paid $1.3 million for softwaredeveloped by Israeli hackers.

In July 2016 a federal court also ruled infavour of Microsoft that the government inrelation to a criminal investigation could notforce Microsoft to disclose personal informa-tion from emails of customers held on serverslocated outside the US.

“What is it that internet companies shouldbe doing?” asks Balin. “If they hand that dataover they are putting someone’s life at risk.”

The debate broadens when the press is in-volved. A case in point being the recent hack

of the Democratic National Committee’semails and server allegedly by Russian spies,and then the publication of the emails. Therevelation brought down Deborah Wasser-man Schultz, the head of the Democratic Na-tional Committee. “It is a classic example ofthe tension between national security and theright of the free press to publish what is in itspossession,” says Stephens.

Laws regulating privacy and disclosure ofsecret or confidential information vary widelyacross the world, with even significant differ-ences between the US and UK.

According to Stephens, the BartnickiSupreme Court decision is the benchmark inthe US. “If the media did not connive in acriminal way to get the material they can pub-lish it,” he says.

A high stakes debateMicrosoft, US intelligence and the Guardian newspaperwrestle over privacy and national security

WA S H I N G T O N D C6 IBA Daily News

SESSION

Breaking news in the digital age: legalissues surrounding electronic delivery ofnews and entertainment

COMMITTEE

Media Law Committee

TIME/VENUE

Today 14:30 – 17:30Harding, Mezzanine level

PREVIEW

Robert Balin, Davis Wright Tremaine

www.iflr.comWednesday, 21st September 2016 7

The International Labor Organization(ILO) estimates that there are 21 mil-lion victims of human trafficking

globally. This transnational criminal enter-prise is worth in the region of $150 billionper year, the second largest source of incomeafter drug trafficking. According to figures,80% of all trafficking is labour-related.

But this multi-billion dollar industrycould not grow without the cooperation ofpublic sector officials, organised crime net-works and individuals in positions of power.

They can help facilitate the traffickingprocess by transporting the victims, receivingbribes or obstructing the legal process. Cor-ruption linked to human trafficking remainsunder-reported, under-investigated andunder-prosecuted, says Luz Nagle, a profes-sor of law at Stetson University College ofLaw and co-chair of the IBA’s PresidentialTask Force Against Human Trafficking.

“Our policies and strategies have focusedmainly on trafficking while overlooking theactions of corrupt actors: public officials andprivate individuals who actively or passivelyfacilitate human trafficking,” says Nagle.“These actors are many and diverse: law en-forcement, immigration, border and customsofficers, labour inspectors, travel agencies,lawyers, diplomats, judges, politicians andbusinessmen.”

While governments and organisations aretackling the issues of labour, sex and organtrafficking head on, corrupt practices and be-haviours have not been given the same atten-tion. As a result, corruption is held as one ofthe reasons trafficking persists. According tothe foreword to the United Nations’ Conven-tion against Transnational Corruption (UN-CATC), corruption “undermines democracyand the rule of law [and] leads to violationsof human rights”.

“Every time a police officer demands abribe to ignore the presence of a child in abrothel or a company employs an individualwho has been trafficked – this is part of theprocess,” says Nagle. “We have been focus-ing on traffickers alone all this time, and notpaid enough attention to the corrupt peoplewho enable them – we have failed to makethe connection between both.”

SanctionsThere are multiple international legal toolsat the disposal of countries to tackle theproblems of human trafficking and corrup-tion separately. Crucially, however, there isno effective legislation linking both thesecrimes together, according to GabrielleWilliamson, partner at Luther in Brusselsand Düsseldorf, and co-chair of the IBA’sPresidential Task Force Against HumanTrafficking.

“As is the case in most other areas, coun-tries may sign a convention for political oreconomic reasons, but not necessarily imple-ment or enforce it. Enforcement is the key,”she explains.

Many countries worldwide have signedconventions and implemented them withsome notable exceptions – North Korea, So-malia and Chad, in most instances.

The United Nations’ Convention againstTransnational Organised Crime has a whole

section on corruption, outlining the need formember countries to implement appropriatesanctions for people found guilty of receiv-ing bribes or other advantages.

The 2000 annexed protocol to Prevent,Suppress and Punish Trafficking in Persons,Especially Women and Children criminaliseshuman trafficking and outlines protectionmechanisms for the victims. This is rein-forced by the 2003 UNCATC, which goesinto more detail: people found guilty of cor-ruption shall be liable to “effective, propor-tionate and dissuasive criminal ornon-criminal sanctions, including monetarysanctions”.

The Organisation for Economic Co-oper-ation and Development’s Anti-Bribery Con-vention establishes a supply-side set ofsanctions, criminalising foreign public offi-cials who receive bribery during the courseof international business transactions.

Although a lot of ground has been cov-ered, Nagle believes there is still more to bedone: prosecutions have actually gone downin the last five years. US Department of Statedata suggest that fewer than 10% of peoplewho receive bribes to facilitate the traffick-ing process are prosecuted.

ComplacencyOne of the key issues hindering the progressof anti-trafficking initiatives is that little ef-fort has been made in numerous countries toenforce international legal provisions.

There is no universal way to address themultiple faces human trafficking can take –from a cultural, economic or legal perspec-tive. Also, different attitudes towards this in-ternational problem can make enforcementharder. For instance, in some countries,cheap labour or sex trafficking may be sig-nificant contributors to the local economy.

“Corporations can engage in labour traf-ficking to maximise profits and stay aheadin highly competitive markets, reducing the

workforce to little more than human chat-tel,” says Nagle. “Our policies and ap-proach to combating human traffickinghave largely overlooked and ignored thosewhose corrupt acts sustain human traffick-ing world-wide.”

Thailand, for instance, which was re-moved from the US Department of State’shighest level watch list this year because ofefforts by the country to tackle trafficking,still relies on fishing and sex trafficking askey sources of income, although TourismMinister Kobkarn Wattanavrangkul an-nounced in July she wants to eradicate sextourism in the country.

In India, the proposed Trafficking of Per-sons (Prevention, Protection and Rehabilita-tion) Bill of 2016 is intended to replace ahost of state-level laws which have so far notmade a significant impact on the country’shigh trafficking problem. Out of the hun-dreds of thousands of people forced intoslavery or unpaid labour in the country, it isthought that the police only handled 720human trafficking cases in 2014.

In Latin America, a number of countries’poor corruption track records – Venezuelafor example is 158th out of 167 countriesprofiled by Transparency International – isseen as one reason human trafficking is ahighly lucrative activity, just after drug andarms trafficking.

More generally, according to Trans-parency International, a number of othercountries that are ranked poorly in its Cor-ruption Perceptions Index also tend to beamong the largest source countries forhuman trafficking victims. These include In-donesia, Nigeria, the Philippines and Pak-istan.

What happens now?Today’s IBA discussion will outline some rec-ommendations made in the upcoming Presi-dential Task Force Against Human

Trafficking’s report. “The Task Force reportdemonstrates that without corruption,human trafficking couldn’t exist,” saysDavid W Rivkin, IBA President.

One of the key ways to tackle the traffick-ing and corruption problem is by encourag-ing the government and private sectors todevelop best practices. This could includedeveloping codes of conduct, informationand data-sharing, training, employmentrights guarantees or supply-chain vetting. Anumber of international companies have putdue diligence processes in place to ensurethey or their suppliers do not employ traf-ficked labour.

The IBA Task Force is currently involvedin providing training for judges, prosecutorsand law enforcement officials in key jurisdic-tions (Singapore and the UK, for the timebeing) to ensure they are prepared to spotproblem issues ranging from fake passportsto a victim’s psychological needs. This isdone in conjunction with local bar associa-tions.

The Task Force is also tackling traffickingand corruption by highlighting the need towork on joint international legal frame-works to improve the detection, investiga-tion and enforcement of trafficking crimeseffectively. This would include setting outappropriate sanctions to punish individualswho have taken part in the traffickingprocess.

It would also entail regularly reviewingand monitoring anti-corruption and anti-trafficking strategies set out at national, in-ternational and company levels.

“The current system is not working,”says Williamson. “There is a real need fornot only symbolic sanctions – a countryneeds to be, and seen to be, taking seriouspunitive action as well. We want to send outthe message that human trafficking and cor-ruption are high risk activities, with insuffi-cient promise of rewards.”

A long road ahead Efforts to tackle human trafficking are being hindered by the lack of a coordinated global response to corruption

“Countries rankedpoorly in TransparencyInternational’sCorruption PerceptionsIndex also tend to beamong the largestsource countries forhuman trafficking”

PREVIEW

SESSION

The impact of corruption on humantrafficking

COMMITTEE

IBA Presidential Task Force AgainstHuman Trafficking The report on the issue will be availableonline during the IBA conference and asa hardcopy shortly afterwards

TIME/VENUE

Today 10:45 – 12:00Salon 3, Lobby level

Luz Nagle, Stetson University College of Law

WA S H I N G T O N D C8 IBA Daily News

South Africa’s Public Protector ThuliMadonsela was right when she saidthat while all the players in the jus-

tice system are required to have a level ofindependence, for the judiciary and thelegal profession, independence is “paramount”.

The independence of the legal professionis enshrined on an international-level in theUnited Nations Basic Principles on the Roleof Lawyers. They were adopted in 1990 by8th United Nations Congress on the Preven-tion of Crime and the Treatment of Offend-ers, held in Cuba. One of the principlesoutlines that governments need to ensurethat lawyers are able to perform all of theirprofessional functions without “intimida-tion, hindrance, harassment or improper in-terference”.

Indeed, taking the case of lawyers specif-ically: how can they carry out their profes-sional duties if they face pressure ordisruption from the government, private sec-tor or the public? How can they ensure theproper representation of their clients whenfacing outside interference?

As such, the independence of the legalprofession is considered a public right thatis essential for establishing and maintainingthe rule of law. But this right is in dangereverywhere, for many different reasons, in-cluding threats to the principle of profes-sional secrecy/attorney-client privilege, andthe negative effects of anti-terrorism and sur-veillance legislation. The latter is especiallyrelevant in light of recent wide-ranging datagathering legislation emanating from the UKand the US.

Global threatsThe World Economic Forum’s Global Com-petitiveness Index includes a global rankingof countries according to their level of judi-cial independence. Significantly, most of theusual suspects such as the UK, Canada,Germany or Hong Kong ranked highlyboth in the competitiveness and independ-ence categories. For the US and China,however, while the former was certainlytrue, they ranked 28th and 68th respec-tively, out of 140 countries profiled. Proofthere is still some work to do globally to en-sure lawyers are free from any undue inter-ference.

In its report, the IBA Task Force has iden-tified a number of threats that impedelawyers’ ability to carry out their duties inline with professional standards and the ruleof law. It has focused on some key threatsthat are more or less prevalent on a globalscale, according to Sylvia Khatcherian,deputy general counsel at Bridgewater Asso-ciates, and co-chair of the IBA PresidentialTask Force on the Independence of the LegalProfession.

For instance, the Task Force gatheredinformation which showed that lawyers insome jurisdictions, especially human rightsdefenders, are routinely harassed and per-secuted by governments or even the public.Such jurisdictions in the news recentlyhave included Bangladesh, Burundi andTurkey.

In China, it is estimated that nearly 250lawyers and human rights campaignershave been jailed since July 2015. Most re-cently, Zhou Shifeng, a Chinese lawyerknown for taking on cases against the PRCgovernment – including exposing thetainted baby milk scandal in 2008 – wasfound guilty of subversion and jailed forseven years.

“The risk of arbitrary punishment or im-prisonment, physical violence, or evendeath, can dissuade lawyers from undertak-ing cases that the government or the publicfinds objectionable,” says Margery Nicoll,deputy secretary-general & director, at theLaw Council of Australia, and chair of theBar Issues Commission. “This, in turn, ef-fectively takes away a lawyer’s ability tomake an informed, impartial and independ-ent choice.”

One other factor that can impactlawyers’ independence is excessive govern-mental control over the regulatory frame-work in a jurisdiction. Indeed, the morecontrol the executive branch has over legalprofessional regulatory organisations, theless likely it is that the legal profession willbe independent.

According to Nicoll, where decisions onadmission, disbarment, and disciplinarymeasures rest in the hands of the executive,

lawyers are less likely, for example, to un-dertake cases against the establishment, forfear of targeted disciplinary measures anddisbarment.

For instance, in Malaysia, proposedamendments to the Legal Profession Act1976 could derail the independence of legalpractitioners in the country – the govern-ment wants to appoint two representativesto the Malaysian Bar Council to represent itsinterests, and reserve the right for the Min-ister in charge of legal affairs to oversee theBar’s election process. These changes havebeen deemed a government attempt to crackdown the management of Malaysian Barand to interfere with the administration ofjustice.

Similar issues have been raised in Ireland,with the country’s government-appointedLegal Services Regulatory Authority havingthe ability to regulate the legal profession.

Another issue that is progressively im-pacting the legal profession is the underlyingtrend of commercialisation. In the UK, forinstance, the Legal Services Act 2007 was in-troduced to liberalise the market for legalservices, including by allowing non-lawyersto buy into law firms and even managethem. The Law Society, the professional as-sociation that represents all legal practition-ers in England and Wales, called for a pollon lawyer support for so-called alternativebusiness structures introduced under theAct, arguing that the increasing commercial-isation of law could impact the independ-ence of the profession.

This scepticism was echoed by the chiefjustice of the Supreme Court of New SouthWales, in Australia, who said in 2012 thatthe “rise of litigation funders and mega-firms, the public listing of incorporated legalpractices, the increased prevalence of privatearbitration, international outsourcing, andthe growing role of in-house counsel, allraise questions about how duties to clientsand the courts may conflict with businesspractice, profit incentives and corporate ex-pectations”.

Global solutions There is no single solution to remedy threatsto lawyers’ integrity and ability to carry outtheir professional duties. But to effectivelytackle threats emanating from the govern-ment, there must be both national and inter-national cooperation.

In the Malaysian example, the country’sbar has opposed draft changes to the Coun-cil’s composition and election on the basisthat they will introduce third-party control,and subsequently threaten the independenceof the profession. It has been very vocal aboutthe negative effects of the proposed amend-ments to the existing legislation in Malaysia,and has appealed for help from internationalactors and organisations, such as the IBA.

“Threats such as the persecution oflawyers usually arise in the context of polit-ical upheaval or instability, but not necessar-ily,” explains Khatcherian. “They can moreeasily be resolved through diplomacy andpolitical action.”

Crucially, the latest attack on a group ofover 170 lawyers and journalists in Pakistan,all of which assembled after the murder ofBilal Anwar Kasi, president of the BalochistanBar Association earlier in August, highlightthis trend of violence against lawyers, whichis slowly spreading across Asia. It is estimatedthat over 50 lawyers have been killed in Pak-istan since the early 2000s, after agreeing todefend people accused of blasphemy or ofstanding up against the government.

The IBA’s own standards call on the pro-fessional associations of lawyers, which itsays have a vital role to uphold professionalstandards and ethics. Beyond that, it saysthat governments worldwide should respectthe proper role of lawyers within the frame-work of their national legislation and prac-tice. “This is a scenario where it is veryimportant for the IBA and our member barassociations to work together,” says DavidW Rivkin, President of the IBA. “We need toconsistently demonstrate to the public whyit is so important that the bar is independ-ent,” he adds.

A global problemHow can the legal profession maintain its independence? Today’s Bar Issues Commission showcase will answer the question

“It is estimated thatover 50 lawyers havebeen killed in Pakistansince the early 2000s”

PREVIEW

SESSION

BIC SHOWCASE: independenceof the legal profession (TaskForce report launch)

COMMITTEE

Bar IssuesCommission/Presidential TaskForce on the Independence ofthe Legal Profession

TIME/VENUE

Today 14:30 - 17:30Salon 3, Lobby level

Margery Nicoll, Chair of Bar Issues Commission

www.iflr.comWednesday, 21st September 2016 9

INTERVIEW

In the 16 years you have served asexecutive director of the IBA, howhave you seen it change andprogress? The most significant change is the broadeningof the association. The IBA has truly evolvedinto ‘the global voice of the legal profession.’With the remarkable support of a dedicatedstaff and member leadership, we have grownfrom 18,000 members in 2000 to more than80,000 today, including 186 of the world’stop law firms and corporate members fromleading companies including Aviva, BP,Exxon Mobil, GlaxoSmithKline, Novartis,Rio Tinto, Shell, Standard Chartered Bank,and UBS AG. Bar membership presentlystands at 194, and spans 114 countries.

In 2000, we had one office – London.Today we have regional offices in Seoul, SaoPaulo, Washington DC and The Hague. Wefounded a permanent litigation centre inSouth Africa – the Southern African Litiga-tion Centre – and maintain representative of-fices in Geneva and Brussels.

Another major change is the expansion ofthe association’s areas of focus. The IBA isnow involved in almost every identifiableissue of substantive law. Not only do we ad-dress broad areas of law for our members,but on a wide remit of legal issues we workto make a tangible impact in the world. Wehave initiated special projects on the envi-ronment, anti-corruption and judicial in-tegrity; created a number of guidelines in useacross the global legal profession on topicsincluding the General Agreement on Tradein Services, conflicts of interest in interna-tional arbitration and, most recently, on so-cial media conduct. And, in the arena ofbusiness and human rights, we have workedalongside Professor John Ruggie to con-tribute significantly to the development ofthe United Nations Guiding Principles – ‘aset of guidelines for States and companies toprevent, address and remedy human rightsabuses committed in business operations’.The IBA website reflects our expansion andhas become a rich resource for the legal pro-fession. The site includes webcasts with no-table individuals, films, podcasts, and amultitude of publications as well as our flag-ship magazine IBA Global Insight.

In addition, the IBA’s Human Rights In-stitute (IBAHRI) has become a major playerin the human rights arena. It works withinthe association to address a vast range of is-sues both topically and geographically. In thelast 16 years it has become a remarkable in-stitution of global stature and has earned anesteemed reputation worldwide.

What do you think the IBA’s keypriorities should be, as we enter into2017?We will continue to work on several prior-ities presently in play, including climatechange, judicial integrity and anti-corrup-tion. Developing initiatives will focus onsanctions and combatting torture. Our newPresident, Martin Solc will bring a fresh setof priorities to his two-year tenure begin-ning January 1. Certainly, I think great at-

tention will be paid to headline issues af-fecting the legal profession such as cyberse-curity.

In addition, the IBA will continue towork on its ground-breaking eyeWitness toAtrocities project. eyeWitness seeks to bringto justice individuals who commit atrocitiesby providing human rights defenders, jour-nalists, and ordinary citizens with a mobileapp to capture verifiable video and photosof abuses. With much needed court admissi-ble footage gathered through the app, theeyeWitness project can effectively advocateto promote accountability for those whocommit the worst international crimes.

Friday will be devoted to the rule oflaw, with this year’s symposiumfeaturing sessions on Iran, and onregional challenges to the rule of law.How can the IBA’s work in this areapromote minimum standards? We created the IBA Rule of Law Day nineyears ago at our Annual Conference in Sin-gapore to ensure a platform to address thepivotal principle of the rule of law. In tan-dem with this annual symposium, we cre-ated an IBA-wide Rule of Law Forum.Through this Forum, and also through theIBAHRI, we have created and worked to im-plement a range of standards that aim to

promote and strengthen the rule of law in aninternational context.

Some key IBAHRI initiatives in this regardinclude: the development of internationalFact-Finding Guidelines for NGOs, pro-duced by the IBAHRI in conjunction with theRaoul Wallenberg Institute and now avail-able in several languages; the passing of res-olutions regarding climate change justice andhuman rights; sexual orientation and genderidentity rights; poverty and human rights;abolition of the death penalty; and the cre-ation of 12 Basic Rule of Law Principles fornew Bar Associations. The IBAHRI has alsoproduced several publications, includingtraining manuals for legal professionals, oninternational human rights standards and in-ternational criminal law. To honour andrecognise individuals who have contributedto the upholding of the rule of law throughtheir work, the IBA has instituted an annualHuman Rights Award, which is presented atour Rule of Law Symposium on the Fridayof the Annual Conference.

As someone with a strong track recordin war crimes prosecution, how doyou assess the progress of theInternational Criminal Court? I’ve always maintained that internationaljustice took a monumental leap forward on

July 1 2012 with the establishment of the In-ternational Criminal Court. Created as apermanent institution to prosecute individu-als accused of the most egregious interna-tional crimes, this vanguard court is aremarkable development in internationallaw.

However, it’s important to remember thatthe Court was never envisioned to be theparamount instrument of accountability forthese crimes. That responsibility was alwaysmeant to rest with national courts, as theybecame the accountability centres for inter-national criminal trials. But the internationalcommunity must do more to assist. Under-taking war crimes trials is an arduous andchallenging endeavour, even for interna-tional courts. In post-conflict states, theprocess can be near impossible. These statesface a myriad of problems, ranging fromlack of resources, lack of political will, ab-sence of human capital, corruption andpoliticised courts. More international assis-tance is needed.

How do you think the fact that thisyear’s conference is taking place inWashington DC, on the eve of the USpresidential election, will add to theweek for delegates?The outcome of the presidential electionsseven weeks from now will be the most im-portant in my lifetime. The world has beenanxiously watching the run-up to the elec-tions and has mostly been baffled and per-plexed by what is occurring in the US. It’slikely that most of our sessions this weekwill at least tangentially, if not directly,touch on the elections. There will, ofcourse, be much conversation around itduring the week, and I think it will add an-other dimension to the experience of ourdelegates here from across the world. Most,if not all, delegates know that the outcomethe election could have a damaging impactworldwide.

You have secured many prestigious USgovernment and regulatory speakers,ranging from General Colin Powell tothe SEC’s Mary Jo White. What cantheir North American perspectivesoffer international delegates? The speaker line-up this year is one of themost wide-ranging and prestigious of anyannual conference in the IBA’s history. Ourdelegates have an unprecedented opportu-nity to gain insight into some of the most im-portant issues facing the world today, froma North American perspective. This is usefulbecause the premise of the IBA Annual Con-ference, indeed the IBA itself, is the exchangeof ideas across geographical and cultural di-vides, contributing to a better understandingof the Other. We are a microcosm of how theworld could and should work. This does notmean that there will always be agreement,but there should be respect for divergentopinions. So, while delegates may not alwaysagree with what the speakers say, they willhave the opportunity to consider the opinionand probe thoughtfully. This is a valuableexercise on all sides.

Kick-starting the debateLong-serving IBA executive director Mark Ellis looks back on the body’s achievements, shares his hopes for the weekand his fears over the US election

The IBA is a microcosm of how the world couldand should work

WA S H I N G T O N D C10 IBA Daily News

THE HISTORY of Washington DC is,in many ways, a reflection of the widerhistory of the US.

The capital – like the country – is the prod-uct of a precisely calibrated, yet often precari-ous, political compromise, one made betweenthe two great forces in American history.

Of course, key episodes in US history havebeen driven by these forces; the Southern-orig-inated focus on liberty as an absolute concept,on the one hand, and the Northern emphasison the freedom provided by functioning, fed-eral government, on the other.

From the early debates on the nature of therevolution, to the US civil war, and beyond,these forces have pushed the US forward.Throughout, the shadow of slavery loomedlarge – and the founding of the capital was noexception.

Initially, the early federal government sat inPhiladelphia. This did not bode well withSoutherners; a location in Virginia was theirpreference. For one, the Old Dominion was

the most populous state at the time and soseemed a natural choice.

Famously, Thomas Jefferson devised thecompromise. Typical to his utopian thought,and often off-the-wall approach to problemsof government, he decided the best course ofaction would be to start from scratch.

New beginningsIn 1790, a site on the Potomac was chosen fora new, separated federal district. This was aflash of brilliance – on new, neutral ground, nostate would have primacy over the new gov-ernment’s seat. President Washington (1789-1797) himself was left to pick the exact locale,and chose a diamond-shaped area a little up-river from his home at Mount Vernon. Twostates, Maryland and Virginia, ceded land tocreate the new district.

But the role of designing the new capitalwas still up for grabs, and Washington handedthe task to a Frenchman, Pierre L’Enfant. ButL’Enfant didn’t have time for coming up witha uniquely American style. Instead, he focusedhis design on what he knew best – the Parishe’d left behind. That decision gave rise to thecity’s style and feel in the present day – longboulevards and public spaces with a Europeantouch.

L’Enfant also introduced a grid system, the

centre of which was to house the Capitolbuilding. But a darker history is also present.While the French provided the architectural vi-sion, it was slave labour that provided muchof the heft required to make that vision a real-ity.

In 2005, Congress investigated whetherslaves were in fact involved in the erection ofDC’s most important government buildings –including the White House. It found they were,and not just at the fringes – but intrinsically so.That work gave rise to certain ironies. Oneslave was recorded as involved in the work tocast the Statue of Freedom standing at the peakof the Capitol dome.

So the young republic had its capital, dedi-cated to freedom but complete with contradic-tions. In the mid-1840s, it saw perhaps itsbiggest physical change. Congress took thepart of the District of Columbia on the Vir-ginia side of the Potomac River, and handed itback to that state. It subsequently became Ar-lington County. Rumours that abolitionists inCongress were going to end slavery in the Dis-trict drove the move forward, as did economicfactors and a popular vote. But the full strate-gic implications of the change weren’t clearuntil around 15 years later.

The outbreak of the US Civil War (1861-1865) meant the capital was suddenly precar-

iously close to enemy territory. Only the Po-tomac separated the two warring sides, and thestrategic imperative to defend the capital in-formed much of the earlier phase of the war.President Lincoln (1861-1865) wanted his gen-erals to act – to move out of the North andcrush the rebellion. But many, and notoriouslyGeneral McClellan, sat still, using the Union’sgrowing armies very little. Frustrated, the Pres-ident was usually swayed by the argument thecapital needed to be defended.

In the event, those fears were somewhat un-founded. The capital was witness to much ofthe political drama of the war, but little of theslaughter. Interestingly, those slaves owned inWashington DC were emancipated on April 161862. That was a full nine months before theEmancipation Proclamation itself, and the timelag transformed the city into a centre for freedslaves.

20th century strifeAlways at the heart of American politics thecity was characterised by riots and civil unrestduring the 1960s and 1970s and has been thesite of many iconic speeches, events, marchesand protests too. And while much of the city’schanges might be unrecognisable to its first in-habitants, its contradictions would make themfeel perfectly at home.

A History of Washington DC The nation’s capital might share physical similarities with Paris, but its history of hard-won freedom is truly unique

LOCAL KNOWLEDGE

News

Us and European counsel and regula-tors are warning another financial cri-sis will occur. And while much has

been done to improve financial stability, andfuture bank sector resilience, there are limits tohow far the law can protect against raw eco-nomics.

“The next financial crisis. Will it come? Forsure. And this time it will be totally different,”said Joanne Kellermann, director of resolutionplanning and decisions at the European SingleResolution Board during yesterday’s panel on

the topic. “It will certainly cause a lot of workfor lawyers, so rest assured,” she added.

Individual jurisdictions have spent the bestpart of the decade that followed 2008 trans-posing new internationally-agreed financialregulation into law. In the US, that process cen-tred on one bumper bill: the 2010 Dodd-FrankAct. In Europe, where the legislative systemdoesn’t lend itself to single bills, over 40 rele-vant individual directives and regulations havebeen released.

According Hendrick Haag, partner at Hen-

geler Mueller, important work has been done.As one example, he cites how banks now holdfar more capital to hand than before. Al-though, that higher capital has yet to be tested.“Whether this is really going to be comfortingin a crisis still remains to be seen,” said Haag.

Thomas Baxter, executive vice president ofthe legal group at the Federal Reserve Bank ofNew York thinks five things have been done toimprove the resilience of the financial system:higher capital levels, minimum liquidity levels,the FSB’s ability to bring non-banks under the

prudential regulatory umbrella, changes in riskmanagement and bank stress tests.

But, according to Baxter, fundamentalchanges in the business model cannot be ad-dressed by law. Before the crisis, the US sawjust such a shift in its financial sector – awayfrom banks extending and then carefully hold-ing loans and towards quite the opposite: theoriginate-to-distribute (OTD) model.

“OTD was a very different way of doingbusiness – you made a loan on day one, andsold it on day two,” Baxter, who was speakingin a private capacity, said. As a result, loanquality collapsed. Banks simply didn’t carewhether the loans were good or bad. That wasa negative situation, but doesn’t mean that lawand regulation is the answer to future para-digm shifts.

Predicting the next crisis

Despite a positive reception and wide-spread adoption globally, the UNCommission on International Trade

Law’s (Uncitral) Model Law on Cross-Bor-der Insolvency is facing challenges in prac-tice, according to speakers at yesterday’ssession on the topic.

The Model Law was adopted in 1997with the aim of providing a more har-monised framework for cross-border insol-vencies, and encouraging cooperationbetween signatory states.

To date, 43 jurisdictions have incorpo-

rated the law – the US via Chapter 15 of itsBankruptcy Code or Japan through its so-called Farip law in 2000 – although there area number of high-profile exceptions includ-ing Singapore.

Various studies have shown that while theModel Law had helped streamline cross-bor-der insolvency processes considerably, therewere still a number of practical difficultiesbecause of its lack of prescriptive approach,which has opened the door to divergent ap-plications.

“What is important is that the Model

Law has infused a spirit of cooperation andcommunication in how cross-border pro-ceedings are carried out,” said Dentons part-ner D Farrington Yates. “You see that in theLehman Brothers’ case because the bank-ruptcy protocol in that instance covered is-sues like data sharing, asset preservation andright to appear without the need for a hugenumber of Chapter 15 proceedings.”

As such, there have been calls globally fora re-visit of the Model Law.

“Do we continue with its so-called pro-cedural incrementalism or do we consider a

hard law approach like the EU InsolvencyRegulation [EUIR],” pondered session mod-erator Adrian Walters, professor of law atChicago-Kent College of Law.

Harmonisation troubles

“Washington handed thetask to Pierre L’Enfant”

Yuri Ide Anderson Mori & Tomotsune, Tokyo,Japan

WA S H I N G T O N D C12 IBA Daily News

Welcome to a world of emotionallycombustive debates over what isChablis, Champagne, Cheddar,

Roquefort, Darjeeling Tea, Basmati rice andmillions of other products around the world.

In this morning’s session Alexandra Nerifrom Herbert Smith Freehills in Paris and JohnWilson from John Wilson Partners inColombo will moderate a panel that will ex-plore the messy legal regime that underpins ge-ographical indications (GIs) and otherprotectors of geographically specific products.The session will also discuss why protectingsuch products against ‘genericisation’ or ‘bas-tardisation’ is so important. A key questionthat will be tackled is what sort of global co-herence can be made of the existing legalregimes.

The products in question are often deeplylocal and at the core of a region’s identity. Theyare unique to and defined by both the regionand manner in which they are produced. Oth-ers argue that they are generic, that Cheddaris just white cheese; that Chablis, so revered inFrance and by wine connoisseurs that it doesnot even deign to use the label Chardonnay,still appears on labels of Californian-producedwine and in the US can serve as a by-word forcheap wine, guzzled from a jug, never mind thegrape that made it. “For us, the French, this isblasphemous,” says Neri.

The complexity of the situation is largelydown to the fact that there is a whole plethoraof international and national legal regimes thatdefine and protect products. Some of the betterknown include France’s Appellation d’OrigineControlée (AOC) and the EU’s Protected Des-ignation of Origin (PDO), which also regulatesProtected Geographical Indication (PGI) andTraditional Specialities Guaranteed (TSG). Ac-cording to Neri three legal instruments mediateon a global level: the Convention of Paris, theMadrid Agreement for the Repression of Falseor Deceptive Indications of Source on Goodsand the Lisbon Agreement for the Protectionof Appellations of Origin.

To complicate matters, the EU has also re-cently been using bilateral agreements to findsolutions. Each accord has its flaws, eitherbeing too narrow or leaving too much scopefor debating issues such as what constitutes so-called false indication. It is a smorgasbord ofconflicting interests and accords that is mademore complicated by the number or variety ofproducts that are covered and the fact that theycan be emotionally, politically and financialcharged.

The sessionAccording to Neri, one of the key dynamicsglobally is the confrontation between the EUand other continents. “On the one had you

have the European continent and on the otherhand you have the American and Australiancontinents. Of course the EU tries to strictlyprotect the Appellations of Origin, or GIs, be-cause the majority are located in Europe. Onthe other hand the two other continents wantto use the GIs because they consider that someof them have become generic,” adds Neri.

From the business perspective GIs are alsoimportant, says Wilson. “GIs are one very im-portant element in the armoury that businessesuse to sell their products and to educate con-sumers about their products. It is not simply

about trademarks, although it can go hand inhand with them.” Neri goes further: “It is aquestion of survival of national productionwithin international commerce. It is somethingvery specific.”

The problem lies in the complex and con-flicting accords that regulate GIs globally,which has led to what Neri refers to as aworldwide war. The question the session willaddress is: “who will try to make the bal-ance…which will allow us to attain a balancebetween national interests and internationaltrade development?”

Blasphemy in CaliforniaThe complex world of geographical indications needsclarity. National commerce depends on it SESSION

Champagne from New York,mon Dieu, quelle horreur

COMMITTEE

International Sales Committee,Intellectual Property andEntertainment Law Committee

TIME/VENUE

Today 10:45 – 12:30Delaware Suite A, Lobby level

PREVIEW

John Wilson, John Wilson Partners

Asession covering the perennially rel-evant topic of what in-house counsellook for in their external counsel will

take place today, but with one crucial differ-ence: there will be no mention of fees.

What law firms strive to provide clientshas shifted over the past five to ten years, letalone the past six months. For example, con-cerns by legal departments in corporate so-cial responsibility-aware companies over thegender diversity and ethnic balance of exter-nal counsel teams are becoming increasinglyimportant.

Thanks in part to the anonymous leak ofover 11 million documents from Panama-headquartered offshore firm Mossack Fon-seca in April 2016, but also to the growinglevels of cybercrime against law firms, theamount of cybersecurity that external coun-sel can demonstrate as protecting data storedon its servers or its email traffic is also higheron the agenda.

According to Peter Rees QC, barrister at39 Essex Chambers and former legal directorof Royal Dutch Shell, examining the relation-ship between the two sides is often hampered

by the issue of fees. “Whenever there is a dis-cussion about the use of external lawyers byin-house counsel it always seems to move to-wards the question of fees, fee arrangementsand innovative billing solutions,” says Rees.“The idea of this session is to leave these toone side and look at all of the other thingsthat in-house counsel look to get from theiroutside lawyers”.

Rees will chair a panel of speakers that in-clude Pii Ketvel, chief executive offiver ofMarcol Capital Europe in Luxembourg,Asma Muttawa, general legal counsel forOPEC (Organisation of the Petroleum Ex-porting Countries) and Elena Borisenko, firstvice-president of Gazprombank and formerDeputy Minister of Justice of the RussianFederation.

Beating the competitionThe panel will discuss many of the less obvi-ous demands of in-house counsel, beyondhigh quality lawyers, high service levels andresponsiveness. “For example, are your ex-ternal counsel willing to enter into arrange-ments where they will not sue you, so that

you are sure that they are your lawyers andnot simply guns for hire?” says Rees. “Arethey willing to provide free advice lines forthe first x number of hours of advice? Whatelse will they provide which will be of use toyou as well as to them?”

Secondees will also be discussed. Firmsused to charge clients for embedding a lawyerin the company but this is increasingly partof the package, particularly as law firms haverecognised just how beneficial it is to them.“It provides a resource for the in-house legalteam but it also means that there is some-body in the external law firm when they re-turn who knows precisely how the companyworks, how the legal team operates, where

the advice is given, the way in which it isgiven and what the preferred method of de-livery is, among other things”.

The gender and ethnic balance in an ex-ternal legal team is also a big topic that islargely being driven out of the US, says Rees.“While I was at Shell, the gender and ethnicdiversity of the lawyers in the team wassomething that was required to be assured aspart of our panel arrangements”. Also highon the agenda at the moment is cybersecurity.

The session will explore how importantare issues such as email encryption or elec-tronic data rooms that cannot be accessed bypeople trying to a get hold of corporate doc-uments.

Don’t mention the moneyExternal law firms are pulling out all the stops to wootheir clients. This morning’s session will assess thosemethods – but ignore the issue of fees

PREVIEW

SESSION

Forget about the fees: what doin-house counsel expect ofoutside counsel?

COMMITTEE

Corporate Counsel Forum

TIME/VENUE

Today 10:45 – 12:30Delaware Suite B, Lobby levelPeter Rees QC, 39 Essex Chambers

“The products in question are often deeply localand at the core of a region’s identity”

News WA S H I N G T O N D C14 IBA Daily News

QUESTIONWhat do you cometo the IBA annualconference for?

Dr Mercy Oke-ChindaUniversity of PortHarcourtNigeria

It’s an opportunity tomeet female litigators

who have been very successful. It’s veryencouraging for me, and comforting toknow the challenges you face are thesame in other jurisdictions.

Juan José Alcerro MillaAguilar Castillo LoveHonduras

To learn from my col-leagues that give ustheir background experi-

ence and for the networking, getting toknow people and to learn from people.It’s great for networking.

Nieves BrizJausasSpain

Because this is agreat place for net-working, there are

lawyers from all around the world.The speakers are really interestingtoo, especially the session on artifi-cial intelligence.

Thomas E TampubolonIndonesian AdvocatesAssociationIndonesia

This is the third time I’vecome to the conference

and I get a lot of benefits from joiningthe discussions. I’m especially here forthe keynote speakers, they’re veryhighly respected.

Carlos Ruiz LapuenteRuiz LapuenteUruguay

It’s important to meet dif-ferent cultures and gainbusiness opportunities,

and to understand the rule of law in lotsof different countries. It’s just amazingto meet people from everywhere.

Alice Dimlong AsaijePlateau State House ofAssemblyNigeria

The conference is aworld-leading organisa-

tion. I expect to meet senior lawyersand hope to learn from them, exchangeinformation and make legal reformsback in Nigeria.

Niklas JRM SchmidtWolf TheissAustria

I’ve been coming for10 years and it’s agreat opportunity to

network with lawyers from othercountries, establish new relationshipsand meet up with friends.

The training, hiring and recruitmentof police officers in the US is essen-tial to improving race relations in

the country, according to the former direc-tor of the FBI Robert S Mueller III, speak-ing during yesterday’s lunchtimediscussion.

“The world witnessed the election ofPresident Obama with great joy and thesense that racism was going to abate, thatwe were moving into a new world,” saidthe IBA’s executive director Mark Ellis,moderating the discussion. “But thatseems to be challenged now…just on Fri-day there was another unarmed black manshot by a white police officer. What are wedoing wrong for this to keep happeningtime and again?”

Mueller explained that when he was ap-pointed director of the FBI in 2001 helearned that the average age of graduatingnew agents was 30 years old, and won-dered why. “They said we give them abadge, a gun, and the power to affect peo-ple’s lives. The most important thing theyhave to have is judgment and maturity.”

Part of the training of FBI agents imple-mented by Mueller’s predecessor involvesgoing to the Holocaust museum. “We re-ally put a lot into training our agents, andmy belief is that we should be doing the

same in the police force,” he added. “It’sso important that these people have agreater worldview than someone just outof college.”

The sheer number of law enforcementdepartments around the country includingcounty, state and federal police, and alllocal sheriffs’ offices makes this difficult.“It means unfortunately a town or citymanager will look at the law enforcementbudget, and the last thing they will con-sider is training,” said Mueller. Larger en-tities with bigger budgets will be able toplace a higher emphasis on improving it.

Mueller was sworn in as the FBI’s direc-tor just one week before the 9/11 attacks.

Ellis asked how he feels it has affected himas a person.

Mueller said that on September 112001 he was being briefed on another casewhen an advisor came to tell him a planehad just hit a tower in New York. Then,they came back again and said a secondplane had hit a tower – at which point theyknew it was most likely a terrorist attack.Next the Federal Aviation Authoritywarned the Bureau of a hijacked planeheading towards Washington DC, 80 milesaway. “What I remember most is trying tofigure out the target – would it be the Bu-reau’s building? Would it be the Capitol,or the White House?” That plane eventu-ally crashed in a field in Pennsylvania.

“But what happened after was a reallyeducating experience for me,” he added,explaining that the first time he briefedPresident Bush after the event, he told howthe Bureau was working towards identify-ing the hijackers by their seat numbers onthe plane. “The President held up his handand said ‘stop – you’re telling me you’rebringing people to justice, and I expect theFBI to do that. But my question today is:what are you doing to prevent the next ter-rorist attack?’”

Mueller said he had not expected thatquestion. “I felt like a high school student

who hadn’t done their homework,” addingthat the next day he of course had an an-swer. “And that question was the sameevery time I briefed Bush after 9/11, andevery time I briefed President Obama – itwas always the same.”

Mueller: police training mustimprove

Key takeawaysMore attention must be paid to the•training of law enforcement officialsto improve race relations in the USand prevent the shootings of un-armed black people by police offi-cers;

But it’s difficult as there are thou-•sands of police departments, little co-hesion and small budgets;

The FBI puts an intense focus on the•training of its agents – requiringthem to attend the Holocaust Mu-seum for example – and Muellerthinks police forces should do thesame.

EDITORIALEditor: Tom YoungReporters: Amélie LabbéLizzie MeagerEdward PriceBrian Yap

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“I felt like a high schoolstudent who hadn’t donetheir homework”

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