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DAILYNEWSB O S T O N T U E S D AY, O C T O B E R 8 T H 2 0 1 3

uring Monday’s presidentialshowcase session on humantrafficking, speakers called fortougher sanctions, as well as

increased state consciousness of traffickingoffences.

Human trafficking, or modern-day slav-ery, exists in almost every country in theworld. Although it’s difficult to quantifythe extent of the problem, conservativeestimates have valued the industry at $32billion.

Laurel Bellows, the immediate formerpresident of the American Bar Association,set out five steps to help in the fight againsthuman trafficking.

First was a uniform minimum law topunish the captors. This legislation, shesaid, should allow for the use of civil law torecoup profits.

“In lobbying for that minimum law wewill also be asking for an expansion of thelaw with tough penalties and resources tohelp the victims,” said Bellows.

Education of first responders on how torecognise a victim when they initially pres-

ent themselves was also a key issue.Bellows stressed that these victims, who areoften deeply traumatised, will never self-identify.

Third on the list was the promulgationof business conduct standards promoting azero tolerance approach.

Fourth, Bellows stressed the need toensure that every employee understands theproblem and is able to spot it. This, saidBellow, could take the form of severalpages in an employment manual, listingways to identify victims and an anonymoustelephone hotline.

This was followed by a suggestion for anational awareness campaign because, asBellows said, many people have no ideahow deeply slavery permeates lives.

Moving forwardsFollowing the rape of a young girl in Delhi,a committee was formed of which GopalSubramanium, the former Solicitor Generalof India, was part. One of the committee’sconclusions was that it is not enough toincorporate the Palermo protocol intodomestic legislation.

Enacted in 2000, the Palermo protocolstands as the most comprehensive andimportant international legislation onhuman trafficking.

“We have to look at this in terms of verystrong and compulsory sanctions,” saidSubramanium.

Indeed, following the report’s release,the offence of trafficking was enacted forthe first time in India in May 2013. Thisnew offence gives stringent sentences.

“If a public servant or a police officer isinvolved in trafficking, which [..] is one ofthe tacit approvals of this state to traffick-

ing, we suggested that he must be punishedwith life imprisonment at the very mini-mum,” said Subramanium.

During his frank address, the top-rank-ing lawyer also discussed the rehabilitationof victims of trafficking offences.

“I’m very happy to see the instances ofrehabilitation,” he said, referring to videofootage shown during the showcase. “Butplease note that for two instances of suc-cessful rehabilitation you have a ratio ofalmost 10,000 cases of non-rehabilita-tion.”

Further, he warned that the very institu-tions which are meant to care for traffickedwomen and children sometimes are preda-tors themselves.

D

PONZI SCHEMES

How best to tackle the issuesthat arise when a Ponzischeme implodesPAGE 12

The five stepsto fight humantrafficking

A CONVERSATION WITH...

Professor Cherif Bassiouni onthe shifting balance of theArab worldPAGE 7

CORPORATE SOCIAL RESPONSIBILTY

A preview of today’s session onthe changing CSR landscapePAGE 9

#ibabostonJ 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

Key takeaways• During Monday’s presidentialshowcase session, the immediateformer President of the American BarAssociation set out a five step planto help the fight against trafficking;

• India’s former Solicitor General calledfor tougher sanctions, as well asincreased government consciousnessof trafficking offences;

• At the end of the session, the IBAannounced the creation of aPresidential Task Force on HumanTrafficking, and a concrete projectfor the IBA to carry out in the nextyears.

Many people have noidea how deeplyslavery permeates lives

Continued on page 15

lthough structuringand legal considera-tions are obviouslyintegral to completing

successful M&A deals involvingdistressed assets, the biggest issuemay be that of timing.

Panelists participating in yes-terday’s session agreed that com-panies must begin considering adistressed sale or restructuring atan early stage.

But denial on the company’sside is common, and not onlyfrom the company’s executivesbut also from its advisors –including its lawyers. By the timethe distressed company getsaround to selling itself or itsassets, it may be too late and itmay have to resort to a fire sale.

Ultimately timing means flexi-bility, panelists agreed. The earlierthat a company recognises itsissues and goes into the process,the more opportunities there arefrom a structuring perspective.

They referred to the ‘tradition-al insolvency death spiral’. This isfunnel-shaped: there are a lot ofopportunities at the top butoptions become much thinner as acompany moves down the cone.

Avoiding denialBut denial is one of the most diffi-cult things to overcome. HoulihanLokey’s Adam Dunayer said thatthis was especially difficultbecause the parties controlling theentity were perpetually one quar-ter or one contract away from fly-ing out of the depths of distress.

The person who controls theentity in which a buyer is trying toinvest has a call option on theequity. The value of the call is afunction of how much time theyhave, as well as the strike price.But time is all they have, andmore often than not they will playit out until the end.

Others on the panel noted thatthey have had experiences inwhich they could have made agenuine difference for their clientsif they had called early enough.

But some lawyers said that otherpractitioners were actually part ofthe problem. Speaking from theaudience, one lawyer from a largefirm said it was not unusual forcorporate and securities lawyersto fall into exactly the same trapas the client.

Sometimes when lawyers workvery closely with the client, thesame denial spills over.

“By the time [the corporate

and securities partners] comedown to the insolvency group –which they regard as a bunch ofvultures – they reluctantly exposetheir client to us,” he said. “Oftenit’s too late.”

Another delegate recommend-ed that insolvency practitionersbecome friends with their taxpartners. “I find that an impor-tant source of information is mytax colleagues,” he said. “Theyoften give good tips.”

Longer timelinesCompanies may be in denialabout their financial situations,but investors in the competitivedistressed M&A space are look-ing for assets earlier. Panelistsagreed that instead of waiting forwhen a company has a catalystmoment, such as a covenantbreach or a liquidity problem,they’re now backing up anywherebetween six to 18 months beforethat event is due to happen.

That expands the pipeline fordistressed opportunities. Notevery company will end up dis-tressed, however, especially as ithas become easier for troubledcompanies to access the debt markets and delay a restructuringsituation.

Regardless, the expansion ofthe pipeline has affected howlawyers look at restructurings.“The trick is not only to find theright situation but also to backthe right horse,” said Slaughter &May’s Miranda Leung.

She explained that today the

situations are so complex, with somany layers of different debt andso many stakeholders, thatlawyers may easily getapproached by one of the stake-holders. Lawyers must now workout whether that party will be alarge player in the restructuringsituation.

What’s nextIgnacio Pesqueira of GalaciaAbogados noted a huge differencebetween the approaches that insti-tutional and private companiesnow take.

Most institutional companiestend to get rid of bad businessesmore easily. Private equity fundsmust dispose of investments thatgo sour, so it’s easier for them tomove into the distressed processthan for ordinary private companies.

Further panelists agreed thatthey’ve recently seen more defen-sive acquisitions, where an exist-ing operating entity buys troubledsmaller players – typically in ‘buyit to kill it’ deals.

This is often a strategic deci-sion. Buying a failing companyand throwing it away, prevents aprivate equity fund or anothercompany buying it and possiblyturning it around.

But assets that these companiesare looking at have also changed.“Oftentimes the most valuableasset is no longer bricks and mor-tars – it’s often intellectual prop-erty rights now,” said DickinsonWright’s Michael Weinczok.

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Distress callNews B O S T O N2 IBA Daily News

Denial is one ofthe most difficultthings to overcome

MONDAY HIGHLIGHT

SESSION NAME

How much is that doggiein the window: theacquisition of distressedcompanies and theirassets

Key takeaways• Structuring and legalconsiderations are obviouslyintegral to completingsuccessful M&A dealsinvolving distressed assets;

• But the biggest issue may bethat of timing;

• Denial on the company’sside is common, however;

• Regardless, investors in thecompetitive distressed M&Aspace are looking for assetsearlier;

• Defensive acquisitions havealso become common, withever more existing operatingentities buying troubledsmaller players in so-called‘buy it to kill it’ deals.

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he IBA’s public law section yesterday formally launched itsnew subcommittee

dedicated to issues faced by international organisations’ legalcounsel.

With significant input and suggestions from present and former legal counsel of international organisations whowere in attendance, yesterday’s session explored the recommendedagenda, structure and priorities ofthe newly-formed subcommittee.

The brainchild of the public lawsection and the OECD, the first-of-its-kind forum creates a platformfor the exchange of ideas and dialogue on issues confronting legaldirectorates around the world.

“There is a lack of internationalforum for lawyers in internationalorganisations to discuss issues suchas immunities and cross-bordercontracts,” said session co-chairChristo Botha, of the University ofPretoria, South Africa.

As explained by panelist YaaraAlon of the OECD directorate forlegal affairs, the understanding thatinternational organisations share

the same preoccupations underpinsthe subcommittee’s formation andoperations going forward. “Itcould be very useful to have aforum with a good exchange onhot topics, and where appropriate,to think about collective and jointaction on certain issues,” she said.

Earlier this year, the legaldirectorates of leading international organisations wereasked to identify their key areasof concern and priorities. Theissues that came up again andagain – including privileges andimmunities, governance, anti-bribery and fraud internet regulation and intellectual property, cloud computing anddata protection – are the initialtopics of interest for the sub-committee.

But the co-chairs and panelistsrepeated throughout the sessionthat they would like members’ideas on the topics that should beaddressed. It was quite fitting,then, that the morning sessionproved to be a collaborative one,with significant audience partici-pation and recommendations forthe new forum.

Hybrid approach One audience member, and formerinternational organisation generalcounsel issued what some maydeem a warning to clearly understand and define what theconnection between the IBA andinternational organisations canand should be. “If you are workingfor an international organisation,you want to be involved in the partof the IBA that is concerned withthe substantive issues that you aredealing with,” they said.

Legal counsel from organisations focused on specificareas – maritime law, for example– are facing different issues tomore broadly-mandated entitieslike the OECD. And the OECDhas distinct differences from thelikes of the World Bank andInternational Monetary Fund, inthat it doesn’t provide countrieswith financial assistance or loans.But it is the specific substantiveissues that general counsel aremost likely to be interested in, theaudience member said.

Alon agreed with the generalproposition that internationalorganisations deal with different

issues but noted that they alsoshare some of the same preoccu-pations. “We interact a lotalready with our counterparts inother organisations, and not nec-essarily those that have the samescope of work,” she said.

She took privileges and immunities as an example. “Even ifwe implement them differently tothe UN, I think they can inspire usand share their experiences. Andthe exchange and dialogue couldbe very useful for us,” she said.

Panelist Simon Hannaford, legalsupport office director of the UNdevelopment programme, said heviewed the forum as raising aware-ness, from a legal point of view, ofthe type of issues that confrontorganisations on a daily basis.

In this sense, the subcommitteeplans to link up with other com-mittees to facilitate discussions onspecific and focused topics toaddress substantive areas of lawbeing faced by counsel.

“That is the type of hybridapproach we have to aim for,”said co-chair Bernard Bekink, alsoof the University of Pretoria,South Africa.

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New IBA platform takes shapewww.iflr.com NewsTuesday, 8th October 2013 3

MONDAY HIGHLIGHT

SESSION NAME

The legal status and roleof legal counsel ofinternationalorganisations: neither fishnor fowl

Key takeaways• The IBA’s public law sectionyesterday formally launchedits new subcommitteededicated to issues faced byinternational organisations’legal counsel;

• The first-of-its-kind forumcreates a platform for theexchange of ideas anddialogue on issues confrontinglegal directorates around theworld;

• The understanding thatinternational organsationsshare the samepreoccupations underpins itsformation and operations.

urprising and uncom-mon forms of prose-cution have been pur-sued by governments

around the world to limit the free-dom of speech and expression.

The reasons for these limita-tions include national security,fighting terrorism, preventinghateful or insulting speech andblasphemy. Crackdowns acrossjurisdictions often prompt a moveaway from traditional media, asboth journalists and their sourcesincreasingly face prosecution.

Panelists from six countries inyesterday’s session noted somesigns that governments and judici-aries may be changing their tone,but said increased limitations onfree speech were still a cause forconcern.

Former New York Times editorBill Keller addressed these issues inregards to the US, where freedomof speech is a hallmark of the con-stitution. He explained the currentadministration has increasinglygone after whistleblowers, usingthe latest technology to track con-versations and compel journaliststo divulge their sources.

“The first amendment serves itspurpose, protecting serious andimportant journalism from officialreprisals,” Keller told the session. “Iwish I could say the story endsthere, but things are not quite assimple as they seem. While the gov-ernment has been unable to preventpublication in these high profile

cases, it has brought the full force ofthe law to bear on our sources. Theleakers and whistle blowers whodivulge classified information.”

Governments have broadenedhow they choose to prosecuteindividuals for their speech. The

Obama administration hascharged eight individuals underthe 1917 espionage act. In 2012,the Russian government demon-strated how laws preventinginsults and hate speech could beused, during their prosecution ofthe band Pussy Riot.

“The charges were interestingbecause they revealed a certaindegree of sophistication on thepart of the Russian authorities, inchoosing the themes for suppress-ing free expression,” said NatashaLisman from Surgarman RogersBarshak & Cohen.

“The government chose tofocus on the application of theRussian version of the anti-hatespeech laws that we see in somany European countries,” sheexplained.

In Turkey, where a crackdownon journalists has been carriedout under the guise of protectingagainst terrorism, many citizensare turning away from main-stream media.

“On a number of occasionsjournalists were fired after writingopenly critical pieces about thegovernment’s policies,” said

Zeynep Özkan Özeren, anIstanbul-based lawyer fromÖzkan Law Office.

She explained self-censorshiphas become a common phenome-non in Turkey, highlighted duringlast summer’s protest in Istanbul’sTaksim square.

“As a result the mainstreammedia completely lost its credibil-ity in Turkey and everyone isturning to social media,” she said.

A number of judicial rulings inFrance, the US and even Malaysiado offer some hope that limita-tions on the freedom of expres-sion may have reached a turningpoint. French courts have ruledthat parodies of religious scenescan be shown in public spaces, forexample. While, Malaysia is cur-rently awaiting a ruling on use ofthe word Allah by Christians. Acurrent decision that the wordcan be used to describe god, notonly a Muslim god, is being chal-lenged in the high court. Thereare hopes that a ruling in favourof the lower court’s decision couldincrease freedom of expression inthe country.

S

Free to speak?News B O S T O N4 IBA Daily News

MONDAY HIGHLIGHT

SESSION NAME

We can handle the truth!A global update from thecradle of liberty, on howgovernments limit speechand expression

Key takeaways• Surprising forms ofprosecution have beenpursued by governmentsaround the world to limit thefreedom of speech andexpression;

• Certain governments haverecently broadened howthey choose to prosecuteindividuals for their speech;

• But a number of juridicalrulings in France, the US andeven Malaysia offer somehope that limitations on thefreedom of expression mayhave reached a turningpoint.

Limitations on thefreedom ofexpression mayhave reached aturning point

www.iflr.com NewsTuesday, 8th October 2013 5

nergy drinks, healthproducts and food sup-plements are big busi-ness now. Consumers

from around the globe are scram-bling to get their hands on the latestmiracle products, hoping for aquick fix.

But while the potentialrewards are high, so are therisks. With so much expectationsurrounding these wares, manu-facturers must be extremelycareful to provide the rightwarnings, not over-promise, andbeware of the myriad of (possi-bly conflicting) rules that canapply to something sold aroundthe globe.

As these industries havebecome more prominent and suc-cessful, so have the number ofconsumer claims and enforce-ment actions they face. This IBAconference sees the Healthcareand Life Sciences LawCommittee, Leisure IndustriesSection, and Product Law andAdvertising Committee team upfor the first time to put theseissues under the spotlight.

Titled ‘Gym bunnies andadvertising hares – advertisinghealth, food, drinks and supple-ments – what you can, can’t andmust say’, this interactive andtimely session will provide dele-gates with valuable insights onadvertising and marketing differ-ent products.

The advent of online shoppinghas taken these issues to anotherlevel, and promises a truly inter-national discussion.

“These products are oftensold across the world very quick-ly, which can create issues inmany jurisdictions,” says sessionchair Aoife Gaughan, a partnerat DWF Fishburns in Dublin.This is particularly so becausedifferent countries often dealwith these issues in differentways.

Most jurisdictions’ advertisingregimes for these products arelooking at three questions: if theclaims are true; if the claims arepermitted for that product (basedon its regulations); and, whetherthe manufacturer has the neces-sary reports and evidence to satis-fy the claims being made.

But while there is a degree ofconsistency within much ofEurope, thanks to EU directives,there are drastic differencesbetween other countries aroundthe world.

“Even in North America, thedifference between US andCanadian laws and regulations isvast,” says session co-moderator

Brenda Pritchard, a partner atGowlings in Toronto.” “It meanswe have a lot of people cross-border shopping and seeing dif-ferent advertising for the sameproduct.”

Most jurisdictions distinguishbetween, and have different regu-lations for, food and supple-ments. “But it is not always clearhow a product should be cate-gorised – this is something wewill be looking at,” saysGaughan.

Red Bull is a prime example.The energy drink is regulated asa natural health product inCanada, which means theiringredients – and recommendeddosage – must be stated on itslabel.

This is not necessarily the sit-uation in the US – which seesmany products regulated atstate-level. It means someoneshopping inter-state couldreceive mixed messages aboutwhat they are buying.

Given these are inherentlyinternational topics, it seems fit-ting that the session includesspeakers from the four corners ofthe globe including India,Australia, Brazil, Japan andGermany.

Co-moderator David Jacoby, aNew York-based partner withSchiff Hardin, tells the IBA DailyNews that based on what he hasseen from the speakers’ materials,the session will prove a grouplearning exercise.

“It seems like the jurisdictionsthat are at the forefront aren’tnecessarily those that are normal-ly considered the most sophisti-cated,” he says. “So I think therecould be a lot to learn acrossjurisdictions.”

New problems, oldproblemsIndustry regulators’ to-do list hasgrown as quickly as health prod-ucts’ popularity. Issues towardsthe top of their agenda includetackling overseas shoppingdesigned to advantage fromcross-border differences, and theinherent difficulties posed by theinternet.

How, for example, can a regu-lator know exactly what prod-ucts are being brought into theirjurisdiction via the internet, letalone confirm that it satisfieslocal laws?

Perhaps an even harder prob-lem to tackle, is consumersexpecting a product to have a cer-tain effect based on non-verbaladvertising techniques. Productplacement by sport stars and

teams, for example, is becomingmore common – particularly forenergy drinks.

“When you drill down into it,often these manufacturers aren’tmaking many claims. But theassociations that come with theproduct can create the impressionit will have a certain effect,” saysGaughan. “This is proving a difficult issue for regulators, but itis something they need to lookclosely at.”

These relatively new tactics,and the problems they create, willbe discussed on Tuesday’s ses-sion. But this should not over-shadow the fact that many prob-lems in this space are steeped inhistory.

The focus on inaccurateclaims, or the absence of warn-ings, about health products canbe traced back for decades,including to the earliest tobaccolitigation cases. Appetite suppres-sant tables, too, were around inthe 19th century.

A recent UK case demon-strates how some age-old prob-lems are among those needingthe most urgent attention. Ayoung medical student died earli-er this year after taking dinitro-phenol which she had orderedonline. Known as DNP, it is soldas a pesticide, and is illegal forhuman consumption. However itis used as an unlicensed slimmingdrug.

“Medical journals show thatUS congress was being warnedabout the same chemical 70 yearsago – so while some things havechanged, some issues have beenfaced for a long time,” saysJacoby.

All together now…The importance of the topicsbeing addressed, combined withthe fact these products areincreasingly becoming part ofpeople’s daily lives, mean the ses-sion should appeal to a broadrange of delegates.

For some lawyers, it is amust-see IBA event. “Anyonewho has clients that sell essen-tially anything that is ingested,

which has any advertising onwhy the product might be goodfor you, is well served to comeand pay close attention,” saysJacoby.

The highly interactive sessionformat is another reason toattend. The informative panel ses-sion will be followed by audienceroundtables, where delegateswatch a mock advert and analysethe message on the basis of theirown jurisdiction’s advertising regulations.

E

The advent ofonline shoppinghas taken theseissues to anotherlevel

How miraculous is your miracleproduct?

SESSION NAME

‘Gym bunnies and adver-tising hares’ – advertising health, food,drinks and supplements –what you can, can’t andmust say

TIME/PLACE

Tuesday 8th October, 2.30pm-5.30pmRoom 208, Second level

Key takeaways• Today’s session looks atadvertising rules for healthsupplements and energydrinks, and how they differaround the world;

• As the popularity of theseproducts has grown, so toohas consumer litigation andenforcement risks for manufacturers;

• Online and overseas shopping has made it difficult for regulators tooversee products being soldin their jurisdictions;

• Recent cases, however,show that some shortcomings in this areacan be traced back over 70years;

• This will be a highly interactive session, withaudience membersanalysing mock adverts.

otwithstanding them u l t i - n a t i o n a l presence of many so-called systemically

important financial institutions(SIFIs), effective means of coordi-nating the cross-border resolutionof a SIFI have yet to emerge.

Indeed, the new resolutionregimes being created for SIFIstypically operate outside of existing insolvency regimes andare administrative in nature.

Today’s session will addressthe need that now exists for cross-border coordination andcooperation when resolving SIFIs,and the possible approaches forachieving this.

“Almost all SIFIs have globaloperations so any failure of a SIFIwill inherently involve cross-border issues,” says DirkBliesener, session co-chair andHengler Mueller partner.

Many argue the fact that nomechanism exists for recognisingthe actions of a foreign resolutionauthority and making them

enforceable in other jurisdictionsundermines confidence in the resolution process.

During the recent financial crisis, then Bank of EnglandGovernor Mervyn King notedthat banks are global in life butnational in death. “We’re going tobe asking – does that have to bethe case, or can a global approachbe taken during resolution thatwould impose losses on shareholders and creditors whilealso protecting markets and preserving the going-concernviable elements of the SIFI,” saysKnox McIlwain, session co-chairand Cleary Gottlieb Steen &Hamilton associate.

Today’s panel will debate thepotential approaches to achievethis. These options include building off the UNCITRALmodel law to create a modelregime where power is delegatedto the local resolution authority torecognise and make enforceablethe actions of a foreign resolution authority.

The real challenge is that,regardless of the regime put inplace, resolution authorities andregulators can only be expected totake actions that are in their ownself interest.

“It can’t be expected that onenation would sacrifice itself or itseconomy for others,” says Bliesener.“That makes it very important tocreate resolution strategies that aremutually beneficial to all the keyplayers so that one country isn’tasking another for a favour, butrather is asking that it act in its ownself interest.”

One such potential strategy isthe so-called single point of entrystrategy. It involves resolving a UKbank, for example, on a globalbasis solely by resolving the UKparent entity. “Coordination andrecognition regimes that allow regulators in other countries todefer taking action under their ownlaws and to support that global res-olution could make this approachmore effective,” McIlwain says.

“There are certain banks for

whom single point of entry is likely to be the best approach toresolution, and that’s where thework needs to be done to enablethe relevant resolution authoritiesto coordinate to support thatapproach,” Bliesener adds.

Single point of entry contrastswith the so-called multiple pointsof entry strategy, where eachcountry only resolves the parts of

the SIFI in its own jurisdiction. “That is the best resolution

strategy for certain institutionsthat are structured and funded ina particular way,” says McIlwain.“The focus there is on coordinat-ed action, with regulators exercising powers so that they’recommunicating and supporting,rather than impeding, eachother.”

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Resolving the SIFIdilemma

SESSION NAME

Dancing to the same tune: coordinating cross-borderresolutions of systemically important financial institutions

PLACE/TIME

Tuesday 8th October, 2.30pm-530pmRoom 103, Plaza level

Key takeaways• Effective means of coordinating the resolution of a SIFI have yetto emerge;

• Panellists in today’s session will discuss the need that now existsfor cross-border coordination and cooperation when resolvingSIFIs, and the possible approaches for achieving this;

• These options include building off the UNCITRAL model law tocreate a model regime where power is delegated to the local resolution authority to recognise and make enforceable theactions of a foreign resolution authority;

• The real challenge is that, regardless of the regime put in place, resolution authorities and regulators can only be expected to takeactions that are in their own self interest.

News B O S T O N6 IBA Daily News

www.iflr.com A conversation with...Tuesday, 8th October 2013 7

he 2013 IBA confer-ence sees the return ofthe popular A conversation with...

series of interviews with leadinglegal and business experts.

Professor Cherif Bassiouni,often referred to as the father of international criminal law, willtake part in the Tuesday afternoon session.

Professor Bassiouni will discussissues regarding the Middle Eastand post-Arab Spring period inthe context of the shifting balanceof global politics and present conditions in the Arab worldwhere, says Professor Bassiouni,there is no pursuit of transitionalor post conflict justice.

Speaking on his experienceinvestigating conflicts during awide-ranging interview at lastyear’s IBA, Professor Bassiounisaid that one thing is certain:every conflict is sui generis.

“Every conflict has its owncharacteristic,” Bassiouni told theaudience. “One thing, however,remains constant: the tragic realisation that human activismdoesn’t change, that you see thesame type of human reactions –for lack of a better term, I wouldcall ‘evil’ that would come out ina culture like the formerYugoslavia or Afghanistan or Iraqor Libya or Bahrain.”

“It seems like the veneer ofhuman civilisation is very thin and,if you scratch that veneer, humanactivism comes out very fast,” theinternationally renowned warcrimes expert continued.

“On the other hand, humangood comes out very fast as well,”added Bassiouni. “You see on theother side the number of personswho come out and do the rightthing: who save, who try to savevictims, who expose their lives inorder to do the right thing.”

Professor Bassiouni served asChair of the Bahrain IndependentCommission of Inquiry

established by Royal Order of theKing of Bahrain to investigate andreport on the events that tookplace in Bahrain in February andMarch 2011, and to determinewhether the events involved violations of international humanrights law and norms.

Professor Cherif Bassiouni hasextensive experience working onCommissions of Inquiry. Hechaired the United NationsIndependent InternationalCommission of Inquiry for Libyain 2011; was also involved in commissions investigating thehuman rights situation inAfghanistan between 2004 and2006, and violations of

international humanitarian law inthe Former Yugoslavia in 1993.Professor Bassiouni chaired theSecurity Council Commission onthe former Yugoslavia and was theindependent expert on humanrights for Afghanistan.

Professor Bassiouni was nominated for the Nobel PeacePrize for his work in the field ofinternational criminal justice andfor his contribution to the creationof the International CriminalCourt. He is the recipient of numerous academic and civicawards. A well-published author,Professor Bassiouni’s works includesome of the leading textbooks ininternational criminal law.

Professor Bassiouni began hiseducation in Egypt where heobtained an LLB from theUniversity of Cairo. He also pur-sued his legal education in France,Switzerland, and the US where heearned the following degrees: aDoctor of Jurisprudence fromIndiana University; LLM fromJohn Marshall Law School; andDoctor of Juridicial Science fromGeorge Washington University.

The A conversation with...series takes place at lunch-timethroughout the week and is opento all delegates. All include a Q&Asession, providing the audiencewith the opportunity to addressdirectly the high-level speakers.

T

In search of justiceSESSION NAME

A conversation with…Professor Cherif Bassiouni

PLACE/TIME

Tuesday 8th October 1pm-2.15pmRoom 210, Second level

Key takeaways• The 2013 IBA conferencesees the return of the popularA conversation with... seriesof interviews with leadinglegal and business experts;

• Professor Cherif Bassiouni,often referred to as thefather of international criminal law, will take partin today’s session;

• He will discuss issuesregarding the Middle Eastand post-Arab Spring periodin the context of the shiftingbalance of global politics;

• The A conversation with...series takes place at lunch-time throughout the weekand is open to all delegates.

The veneer ofhuman civilisationis very thin

Back BayBack Bay boasts Boston stalwartssuch as L’Espalier, located next tothe Mandarin Oriental Hotel. It isknown for its sophisticated mix ofNew England and French cuisine,as well as its focus on local ingredi-ents. Mistral also serves Frenchand Mediterranean cuisine, andboasts a long-standing reputation.For Italian outside the North End,Lucca Back Bay wins rave reviews.

Uni Sashimi Bar and Clio inthe Eliot Hotel near the conven-tion is another choice for businesslunches and dinners. Both arehighly recognised eateries in theirown right, but in an area where itcan be hard to find late-nightsnacks, Uni is also known for itsmidnight ramen on Thursdays,Fridays and Saturdays.

Quicker lunch options near theconference include Flour Bakery +Café, which is famous for its sticky

buns but also serves sandwiches.The Parish Café is known for bothits sandwiches and its outdoorpatio: its Boylston Street locationmakes for great people watching.For ice cream – oddly popular in acity known for its cold winters –local chain J.P. Licks is a must-visit.

North EndBoston’s North End is famous forits cannolis, or ricotta-filled pastry tubes. Locals and touristsalike have debated between thoseat Mike’s Pastry and ModernPastry for years – try both. Thearea is famous for its Italian food,and Giacomo’s Ristorante is especially well-known.

Boston-style seafood can also befound here, with The Daily Catchand Neptune Oyster garnering ravereviews. However, neither takesreservations, so be prepared toarrive early or wait in lines.

Fort PointThis is one of Boston’s up-and-coming areas. It’s seen enormousdevelopment in the last few yearsand is home to many of the city’snew restaurants.

Drink, which comprises onecrowded, mazy bar, is a favouriteof cocktail aficionados, and theDark and Stormy is recommended.Menton, is located nearby: KristenKish, the recent winner of the USreality television show Top Chef,was recently promoted as its chefde cuisine.

For a taste of ubiquitousBoston chain Legal Sea Foods, themore experimental Legal TestKitchen is in this neighbourhood.Another destination is HarpoonBrewery, a working brewery specialising in craft beers.

CambridgeCrossing the Charles River,

Cambridge also has an enormousselection of restaurants.Toscanini’s in MIT’s CentralSquare is famous for its unique icecream flavours, such as gingersnap molasses. Craigie on Mainis nearby, and is known for itstake on simple dishes. It’s roastchicken is a must. Bondir isanother highlight, and was namedone of the ten Best NewRestaurants in America by BonAppetit in 2011.

For more high-end dining, headto Harvard Square. Sandrine’sBistro is a choice for French

cuisine. Rialto in the Charles Hotelserves both Italian food and NewEngland favourites. Henrietta’sTable, which highlights NewEngland produce, is also in thehotel. If you’re staying over theweekend, it serves one of the bestSunday brunches in Boston.

Another more casual optionknown for its focus on local ingredients is Clover Food Lab,which began as a food truck thatparked in front of MIT. It nowhas locations in Harvard Squareas well as Brookline and onNewbury Street.

Things to do B O S T O N8 IBA Daily News

What to eat in BostonAlthough Boston is one of America’s financial centres, college studentscomprise one-third of its population, meaning that it’s equally easy tofind a memorable business lunch venue as it is a quick snack by theconference venue.

or years, corporateexecutives have wres-tled with the issue ofa firm’s responsibility

to society.Corporate Social Responsibility

(CSR) is a requirement that hascrept up on organisations world-wide. Defined strategically, it is theways in which companies managetheir economic, social and environmental impacts.

Cost-cutting attempts by companies who move operationsto countries with lower standardsof business conduct precipitated a‘race to the bottom’. “This initiated a much wider discussionon corporate social responsibility,”says session chair Dentons’ BirgitSpiesshofer. “To this extent it is thechild of globalisation.”

And it is increasing in scopetoo.

Data protection increasinglyfalls under the ambit of CSR.“Programmes such as those of theNational Security Agency in the USare designed to create a ‘transparent citizen’,” saysSpiesshofer. “We need to discuss

whether the role played by companies like Google orFacebook in this was appropriate.”

Supply chain management isalso growing in importance. “Theinternet makes it very easy for acompany to ruin its reputation,”Spiesshofer explains. “Ensuringyour supply chain is not connect-ed with any exploitative labourissues is an increasing concern forcompanies.”

Today’s session will show thatCSR is developing from voluntaryinitiatives to more binding rules andthat strategic issues are interwovenwith soft law and hard law issues.“You have a trickling down effectfor example of the UN GuidingPrinciples, through to the OECDGuidelines for MultinationalEnterprises, the EuropeanCommission’s Strategy Paper of2011 and to EU Member StatesCSR policies, encompassing hardlaw amendments, soft law guidanceand educational and training measures,” says Spiesshofer.

In response to the UNGuiding Principles, the OECDincorporated in 2011 a chapteron human rights into itsGuidelines for MultinationalEnterprises. The EuropeanCommission published a newstrategy paper on corporatesocial responsibility in which itset an action agenda for 2011 to2014, both for the EU and theMember States, addressing thefull range of CSR relatedaspects.

These developments areincreasing incentives for firms toinvest in CSR to avoid reputational damages and costly litigation.

Indeed, companies need toembed CSR into their business.“Drafting or developing a corporate social responsibilitystrategy is one way of doingthis,” says Spiesshofer. “But thisneeds to be supervised to makesure the policy is more than justa ‘paper tiger’.”

Today’s session aims todemonstrate in a case study dealing with a new industrial settlement in a sensitive area thatsuch a typical case encompassesa whole range of diverse CSRissues. “We want to show theaudience that they cannot just sitback,” says Spiesshofer. “CSR isa core strategic and businessissue.”

F

The changing CSR landscapewww.iflr.com NewsTuesday, 8th October 2013 9

SESSION NAME

CSR – it’s not ‘soft’, it’s law

PLACE/TIME

Tuesday 8th October,9.30am-12.30pmRoom 102, Plaza level

Key takeaways• Corporate social responsibil-ity is a requirement that hascrept up on organisationsworldwide;

• CSR is developing from vol-untary initiatives to bindingrules;

• Today’s session will explainthe sliding scale betweenstrategic, soft law and hardlaw issues which makes itdangerous for companies todisregard CSR.

DON’T MISSSESSION NAME

Litigating CSR: The nextgeneration of claims,courts, and remedies forviolations of CSR norms

PLACE/TIME

Thursday 10th October2.30pm-5.30pmRoom 202, Second level

CSR covers a broad array ofsocial, ethical, and legal obligations. Whether and howthese norms should be enforcedin civil litigation raises complexquestions. It is undeniable, however,

that litigation has been usedeffectively to punish perceivedviolations of CSR, and thatmany companies have focusedon CSR compliance in order toavoid litigation. Thursday’s panel will

examine the landscape of CSRlitigation, focusing on currenttrends. For example, the US Alien

Tort Statute, a federal law thathas been widely invoked toassert human rights claimsagainst businesses, is underreview by the US SupremeCourt, and may soon be sub-stantially different in applica-tion. Around the world, there isalso evidence that ‘soft law’CSR standards – such as therecently promulgated ‘GuidingPrinciples’ of the UN SpecialRepresentative on TransnationalBusiness and Human Rights,and similar initiatives – arebecoming incorporated instatute law. Additional laws are being

imposed to govern data privacy,supply chain management, andother matters that fall under theheading of CSR – all of whichmay lead to litigation. How can prudent companies

fulfill their obligations and seekto minimise litigation risk? Andis there a role for alternativedispute resolution in CSR? Withinput from experienced practitioners, this session willtake stock of these developments and look aheadto next steps.“In recent years, plaintiffs

have sued multinational corpo-rations seeking to change theirbehaviour and enforce CSRnorms,” says Morrison &Foerster’s Peter Stern. This typeof litigation is at a crossroadsdue to a recent decision of theUS Supreme Court, he adds.

The internet makesit very easy for acompany to ruinits reputation

CSR is the child ofglobalisation

News B O S T O N10 IBA Daily News

oliticians’ immunityfrom criminal jurisdic-tion is an ancient institution, which

stands the test of time. But is suchprotection still in line with the con-temporary world’s requirements?

Italy’s high profile and ongoingtax fraud case with the country’sformer prime minister, SilvioBerlusconi, is perhaps the mostrecent example of political abuseof power. The case has fuelled thedebate that political immunityshould now be amended.

Today’s session will comparethe rules concerning politicians’protection in various legal systems,focusing on the consequences thesemay have on criminal prosecutionand on transnational mutual assis-tance. It will also ascertain wherethe line is between the legitimateneed to protect the institutions and

the possibility of the politicians’abuse of it.

According to session co-chairStudio Legale Bana’s FabioCagnola it is a highly complexproblem. “Given that some kind ofprotection is absolutely necessaryfor a well-functioning democracy,it can be very difficult to ascertainthe limits that should be imposedon politicians’ immunity,” he says.“It is fine line that is not easy todefine. After all, the higher theprotection offered, the higher thepossibility of abuse.”

Even so, the Berlusconi casehas helped highlight how criticalit is for this issue to be properlydebated. “The case thrust thisproblem into the spotlight, andparticularly raised questions as tothe extent a prime minister is entitled to postpone a criminalcase under Italian laws of immunity,” says Cagnola.

“In Italy, we have strong immu-nity for members of parliamentand government,” he adds. “InItaly, and in the European Union(EU), rules relating to political

immunity are aimed at protectingnot the person but the institution.”

European immunity is a littlestronger than that available topoliticians in the US, thanks primarily to the gradual develop-ment of the EU and the commen-surate concerns of EU parliamentto protect politicians from abuse.

In contrast, explains MichaelCollora, of Boston boutique firm,Collora, there is comparativelylittle privilege for US politicians.

The typical penalty for high-

ranking officials is normallyremoval from office, and not a jailterm. But penalties vary depending on the charge, andmight follow or precede a formalindictment. For example, politicians have some protectionfor civil matters depending ontheir office. Delegates attendingtoday’s session will hear the for-mer district attorney andMassachusetts Attorney GeneralProskauer Rose’s ScottHarshbarger explain how local

and national politicians’ protec-tion vary in the US, and assesshow politicians’ privileges differby reason of his or her position.

Emerging marketsBut Collora says the session willalso give some much-needed consideration to the political pro-tections available in emergingmarkets. “In some developingjurisdictions, such as Russia orChina, people who seeminglychallenge the established order

are subsequently and suddenlysubjected to criminal investigation or indictment simplyfor being in the opposition,” hesays. “It many of these countriesit becomes difficult to oppose theruling regime in any way for fearof repercussions. Some immunitymust therefore be guaranteed tothose people.”

In bringing together expertspeakers from across the US,Europe and Latin America,today’s event aims to garner somemuch-needed consensus as to theappropriate immunity for politicalleaders in the 21st century.

“It is a debate that should be ofinterest to not only criminallawyers and those counsel representing politicians but alsothose focused on public roles, con-stitutional issues and humanrights,” says Cagnola. Additionalspeakers on today’s session includeMaura McGowan QC of the UK’sBar Council, Sjöcrona Van StigtAdvocaten’s Alexander de Swart,Marc Henzelin of Lalive, and GregValenti of Studio Legale Vassalli.

P

Leading by example?

The Berlusconi case explainedIn June, Italy’s highest court began hearings to decide whether formerprime minister Silvio Berlusconi should be jailed and banned from pub-lic office for tax fraud, in a case involving his Mediaset media empire. On August 1st, the court’s ruling threw Italian politics into

disarray when it handed Berlusconi his first definitive jail sentence,of four years commuted to one. Under a law passed by MarioMonti’s government last year that conviction means Berlusconi, whosits in the Senate, also faces the risk of expulsion from parliament. In addition to the tax fraud case, Berlusconi is fighting a seven-

year jail sentence issued by a Milan court this year for paying for sexwith an under-aged prostitute and abusing his office to cover it up.

The higher theprotection offered,the higher thepossibility ofabuse

Some kind ofprotection isabsolutelynecessary for awell-functioningdemocracy

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ProsecutionInfringementLitigationIP

SESSION NAME

Politicians, malfeasancein office and immunities

TIME/PLACE

Tuesday 8th October, 9.30am-12.30pm, Room 103, Plaza level

Key takeaways• Recent examples of politicalabuse of power havefuelled the debate that politi-cians’ immunity from crimi-nal jurisdiction is no longerin line with the contemporary world’srequirements;

• Today’s session will com-pare the rules concerningpoliticians’ protection in var-ious legal systems, focusingon the consequences thesemay have on criminal prose-cution and on transnationalmutual assistance;

• It will also ascertain wherethe line is between the needto protect the institutionsand the possibility of thepoliticians’ abuse of it.

here is a dearth of protections availableto the victims of Ponzischemes at the

international and domestic level.Ponzi schemes are large-scale

frauds often spanning multiplejurisdictions. Their thirst for newcustomers means they often crossborders. They lure customers inwith promises of higher returnsthan other schemes. In reality,these returns are paid usinginvestors’ own money, or moneypaid in by subsequent investors.

When a Ponzi scheme implodes,it raises a number of difficultissues. These range from regulatory responsibility, a myriadof different proceedings, and thetracing of assets across various jurisdictions.

At the international level thereare two regimes designed to provide procedural harmonisationand efficiency in multinationalinsolvency. These are the UNCITRAL Model Law on CrossBorder Insolvency and the EUInsolvency Regulation.

However, reality is more complex. Experience shows thatonce a Ponzi scheme comes to light,most of the money is gone. There islittle for financial regulators andinterested parties to recover.

As such, the challenge is preventing Ponzi Schemes, as wellas improving relief for interested parties.

In this morning’s session, apanel of speakers from Americaand Europe will address theirdirect experiences of how a Ponzischeme is treated in their jurisdictions, as well as the multinational implications. TheInsolvency Section’s InsolvencyLegislation Co–Chair, OscosAbogados’ Dario U Oscós Coriatells the IBA Daily News, “we willexplore how best we can use thelegal tools available to enact effective protection and recoveryfor the investments of investors”.

Speakers will address theirexperience in Ponzi scheme caseswith multi-national implications.Kennet M Krys from KRyS GlobalGrand Cayman will talk about theBernie Madoff, Fairfield $65USBM investment scandal. Jenner& Block’s Ronald Peterson willoutline the cross-border insolvencyimplications of the US Chapter 15UNCITRAL Model Law. RalphJanvey from Krage & Janvey willaddress the Standford Ponzischeme case. McGuireWoods’Dion Hayes will speak about theScott Rothstein Ponzi scheme, andIlona Karppinen from Castren &Snellman will talk on theWinCapita case.

Despite increased regulatoryand governmental vigilance Ponzischemes continue to persist. As

BLG’s Ira Nishisato, Vice-Chair ofthe Litigation Committee explains,no matter how well thoughtthrough rules are they are onlyeffective to the extent they areenforced. “Enforcement is verymuch limited by resources and difficulties in overseeing privatefinancial and transactional relationships,” he says.

Again, this is something thatvaries from jurisdiction to jurisdiction.

Moreover, the perpetrators ofthe most creative Ponzi schemestend to be one step ahead of theregulators. Litigation Committeevice-chair Castren & Snellman’sIlona Karppinen tells the IBADaily News, schemes may be setup in industry ‘blind-spots’ whereregulatory control is inadequate ornon-existent. “The WinCapitascheme in Finland was enacted inthe foreign currency exchangebusiness, which fell out of thebounds of financial regulators’direct supervision,” she says.

As such, while regulatoryreform will continue to be important in preventing Ponzischemes, it has its limitations.Private civil remedies and criminalactions will continue to be crucialin enabling victims to pursue recov-ery when regulators do not act.

And yet, it is a drawn-outprocess, which can see recoveriesdiluted by lawyers’ fees and costs.

While the pursuit of privatecivil remedies by investors againstalleged ‘aiders and abettors’ hasproduced significant recoveries,for example the $1.2 billionRothstein Ponzi scheme in Florida,more generally the pursuit of suchactions tends to delay investor

recoveries without an appreciableincrease in net recoveries.

In insolvency situations, theinsolvency estate representativesfrequently pursue claw-backactions against investors – including even ‘net losers’ – thus redistributing money among theinvestor body but not reducing(and sometimes increasing afterdilution for administrative costs)the net aggregate investor loss.

In such scenarios the pressurecan mount on governments to -step in.

Ponzi schemes can lead to thousands of people pouring theirlife savings into what turn out to bephantom accounts. Recovery ratesfor such schemes sit at around fivepercent, making them particularlyharsh for individual investors.

However, governmentalresponsibility varies from jurisdiction to jurisdiction.

As Nishisato speaking fromCanada explains, “while investorswill always look to the state toprovide compensation in the faceof a regulatory failure, there is nolegal obligation to do so”.

“Under existing law, liabilityfor regulatory negligence is difficult to prove and in my viewthis is unlikely to change,” he says.

Nonetheless, governments canease the burden on victims ofPonzi schemes by introducing efficient and low-cost proceduresto recover losses.

“In Finland the WinCapitaPonzi Scheme evoked new procedural legislation for victims’claims”, says Karppinen. “Theobjective of this legislation wasthat victims of fraud are not damaged further by unreasonable difficulties in seeking recovery.”

T

SESSION NAME

When red flags fly:anatomy of a PonziScheme

TIME/PLACE

Tuesday 8th October,9.30am-12.30pm, Room 304, Third level

Key takeaways• There is a dearth ofprotections available to thevictims of Ponzi schemes atthe international anddomestic level;

• Regulators are very muchlimited by resources anddifficulties in overseeingprivate transactionalrelationships;

• Pursuing criminalenforcement as well asprivate civil remedies is adrawn-out process, whichcan see recoveries dilutedby lawyer’s fees and costs.

Ponzi schemes: here to stayNews B O S T O N12 IBA Daily News

Recovery rates forPonzi schemes sitat around fivepercent

olving the problem ofillegal immigrationwill take a comprehensive and

global solution. Fragmented andpatchwork solutions, seen in various incarnations worldwide,benefit neither immigrants northeir host countries, explainsEzequiel Hernandez, co- chair oftoday’s panel.

Of course, immigration is not anew issue. Throughout history,waves of immigrants haveprompted countries to rethink thepolicies that govern their borders.But globalisation and growingmobility have increased the easeof migration leading to a doubling of immigrants globallybetween 2005 and the 50 yearspreceding it, according to the UNdepartment of economic andsocial affairs.

Today nearly every economyhas some type of undocumentedworker. Harnessing the economicpower of these groups can help toboth replace aging work forcesand pay for retirement and government benefits.

“People come because they arefleeing violence, poverty, lack ofeducation and infrastructure,”Hernandez tells the IBA DailyNews. “Some are fleeing disasters. After the earthquake inHaiti there was a collapse ofinfrastructure; people left to survive.”

In the US alone there are anestimated 11 million undocu-mented immigrants, mainly fromLatin American countries, predominately Mexico. Today’s

speakers, including UnivisionCommunications senior counselArmando Olmedo, are expectedto address the potential in thismarket.

Attempts in the US to addressissues, and proposed solutions, inrelation to illegal immigrationhave deviated from pathways tocitizenship to self-deportation.

Indeed, without a clear federalsolution states have proposed andenforced policies of their own. InArizona – where Hernandez practices – the state restricts immigrants’ ability to obtain government ID by requiring theyshow work permits or visas.Government IDs are also deniedto young people granted deferreddeportation status under a programme initiated by PresidentObama. This initiative aimed tohelp form a pathway to citizenship for 16-30 year oldundocumented immigrantsbrought to the US illegally as chil-

dren. It failed to pass into federallaw as the DREAM[Development, Relief, andEducation for Alien Minors] Actin December 2010.

Hernandez will address thispolicy directive in today’s panel.“Many people haven’t filed,” hesays. “They don’t believe that ifthey give their information to thegovernment that it will be protected.”

There are other hurdles for the‘dreamers’ who do choose toapply. They must demonstratethey came into the country beforethey were 16, for example, andthat can prove difficult for children who were not enrolled inschools. Applicants must alsodemonstrate they have been present in the US for the last fiveyears, have a good moral character, and were present in thecountry on June 15 2012.

What’s more, as Hernandezexplains, since it is a directive

there is no set processing time sosome are waiting six months others 11 and if you get deniedthere is no appeal.

Next steps“Whether you are in Germany oryou are in Canada, you need asolution that relies on the rule oflaw,” says Hernandez.

He believes the continued fragmentation of polices is set tocontinue, until truly comprehensive and likely globalsolutions can be formed.

One of the biggest problems ispolitics. “It’s polarising to talkabout immigration,” he says.

The second issue is fear of cultural and economic change interms of jobs and fear of foreignpopulations. “Every wave ofimmigration in the history of theUS has gone through this, fromthe Irish, the Italians, the Chineseand now Hispanic people,” saysHernandez.

S

awyers and bar associations ralliedagainst anti-moneylaundering laws

inspired by the Financial ActionTask Force’s (FATF) recommen-dations, arguing they jeopardisetheir independence. Instead barassociations must take the lead.

Panelists stressed that lawyerswho knowingly involved inmoney laundering transactionsshould be prosecuted, but theyquestioned whether FATF’s recommendations were well- suited to the needs of the legalprofession.

What is requiredFATF recommendations extendonly to certain activities carriedout by lawyers, such as buyingand selling real estate or compa-nies. They require that lawyersperform thorough client due dili-gence, adhere to record-keeping

requirements and, most contro-versially, report clients to lawenforcement authorities whenthey suspect that the moneyinvolved is the proceeds of acrime.

These recommendations wereoriginally designed to regulate thebanking system. They focused onpreventing unwitting actors frommistakenly becoming involved inmoney laundering. In 2008 guid-ance was adopted for legal profes-sionals to act as ‘gatekeepers’ tothe financial system.

The need for thorough clientdue diligence or record-keepingrequirements was undisputed. Butthere were concerns raised as towho would have access to therecords.

The requirement to reportclients to law enforcement if theysuspected that money involvedconsisted of criminal proceedswas, many said, a troubling

breakdown of attorney-clientprivilege. At an extreme, itrequires lawyers to lie to theirclients as if they do report them,they are unable to inform themdue to a tipping-off provision.

Lawyers agreed that thewhistleblowing requirement rais-es issues around the sanctity ofthe lawyer-client relationship, aswell as more fundamental consti-tutional issues.

Although the American BarAssociation is still in the processof creating its self-regulationapproach, Canada’s Federation ofLaw Societies has been a leader inthis regard.

The Federation has also beensuccessful in cases against theCanadian government regarding a2008 law requiring lawyers tocomply with FATF recommenda-tions. The Federation’s RonaldMacDonald, QC, described thislaw as a serious encroachment

into solicitor-client privilege areaand the independence of the bar.

The Federation won both theinitial case and the appeal, andthe government will find whetherit has leave to take this case to theSupreme Court on October 10.Court decisions so far have sup-ported the notion that the inde-pendence of the bar is a constitu-tionally-protected principle offundamental justice. They havealso stated that the bar associa-tion is best-suited to regulatelawyers.

However MacDonald empha-sised that these have not been vic-tories for lawyers. Instead, he saidthis is a victory for lawyers’clients, who can still rely onobjective lawyers that are inde-pendently regulated.

Panelists urged other bar asso-ciations to follow Canada’s exam-ple, particularly those that havebeen ignoring the issue.

L

News B O S T O N14 IBA Daily News

Legal aliensSESSION NAME

Illegal immigration: causesand impact, immigrationpolicies and public opinionacross the globe. Is therea realistic solution?

TIME/PLACE

Tuesday 8th October2.30pm-5.30pmRoom 101, Plaza level

Key takeaways• According to the UNdepartment of economicand social affairs,globalisation and growingmobility has prompted adoubling of immigrantsglobally between 2005 andthe 50 years preceding it;

• This means that todaynearly every economy hassome type of undocumentedworker. Harnessing theeconomic power of theseindividuals can help to bothreplace aging work forcesand pay for retirement andgovernment benefits;

• But solving the problem ofillegal immigration requiresa comprehensive andglobal solution;

• Today’s panel will outlinehow best to resolve thegrowing problem of illegalimmigration.

Anti-money laundering laws assessedMONDAY HIGHLIGHT

SESSION NAME

Why lawyers are subjectto anti-money launderingregulations – recentdevelopments

Key takeaways• Anti-money laundering rulesfor lawyers set out by theFinancial Action Task Forcejeopardise theindependence of theprofession as well as client– attorney privilege;

• Bar associations must takethe lead in establishingentities’ self-regulationprogrammes.

lively and polarisingdebate on whetherpre-trial publicitythreatens the possibil-

ity of a fair trial opened yesterdayafternoon’s session.

Panelists’ descriptions of theirhome-country approach to presscoverage of criminal trials rein-forced this as an area defined bytransatlantic differences.

The US view of journalists act-ing as the fourth estate is evident inthe country’s tradition of not sup-pressing information, and its strongculture of media and lawyers inter-acting before trials begin.

“In the US we have two trials –one in the courtroom and one outof the courtroom – and I’m not atall convinced that the one out ofthe courtroom necessarily deter-mines the verdict of the one in thecourtroom,” said former federalprosecutor Laurie Levenson.

In stark contrast is the UK’s

approach to ensuring an impartialand objective jury. “If that meansrestraining the media before ajury trial, then so be it,” saidBrian Spiro of BCL BurtonCopeland.

Acknowledging that differ-ences regarding, inter alia, juryselection and sequestration mightin part explain differencesbetween the two countries’ sys-tem. “To a UK defence lawyer Ifind the US system rather frighten-ing in many ways,” Spiro said.

US-based panelists cited caseswhere prejudicial evidence hadbeen leaked to the press before atrial, yet the defendant wasacquitted. A number of studiesdone in an effort to change trialvenue have actually showed that asurprising number of jurors hadnever heard of the defendant.This, one panelist said, suggeststhat the impact of media coveragecould be overstated.

A

www.iflr.com NewsTuesday, 8th October 2013 15

Question: Whatdo you enjoymost about theIBA conference?

Emi OmuraJapan Federation of BarAssociationsJapan

“It’s my first time at the IBA annualconference. I really like the diversity

of people that come to the conference. It’s a verysophisticated, very impressive event. Your meet agreat cross-section of people here with a high-levelof expertise across a broad array of topics.”

Jose Maria Eyzaguire B.Claro & CiaChile

“This is the most prominent gather-ing of lawyers worldwide. It is there-fore instrumental in enabling those

attending to interact with other lawyers on keyissues. You come away with fresh ideas that can beimplemented both in your day-to-day life and inservices to clients.”

Charles MkokwezaCorpus Legal PractitionersZambia

“I think first and foremost the ses-sions are top quality. It’s also a greatevent to foster external relationships,

and it’s time away from the office, so it’s a good mixof business and pleasure.”

Alan HunterThe Law Society of Northern IrelandUK

“I’ve been attending the conferencefor five years. I like how it providesthose from across the legal profes-

sion the opportunity to come together on the issuesthat impact on society, such as the rule of the lawas well as the need for more widespread access tojustice and legal aid.”

John SotosSotosCanada

“The IBA annual conference is agreat networking opportunity. Myfocus is international franchising so

attending this event allows me to meet a variety ofpeople also specialising in this area. I really enjoythe variety of sessions and networking events onoffer at the conference.”

Abiola SoladoyeLagos State JudiciaryNigeria

“This is my constituency. The legalprofession is my first love. Attendingthe conference not only allows me

to keep abreast of the changes in the law profes-sion, but also on key developments across theindustry globally. It’s also a good chance to net-work with my colleagues.”

Dr. Gerhard WegenGleiss LutzGermany

“I expect to meet my good friendsand have lots of good interactionswith those friends during the confer-

ence. Attending this event enables you to developfriendships from all over the world. It’s a reallygreat networking opportunity.”

Cecilia M. MairalMarval O’Farrell & MairalArgentina

“I like to meet lawyers from otherparts of the world who practice thesame type of law that I do. I spe-

cialise in securities law and I’m senior vice-chair ofthe IBA securities law committee. My involvement inthis committee allows me to meet my colleagues inother parts of the world.”

Alison AshfordSeyfarth & ShawUS

“This is the first time I’ve attendedthe IBA annual conference. I’m anAustralian-trained lawyer, and

moved to New York only very recently. Coming tothis event enables me to meet local counsel I mightotherwise have not had the opportunity to meet. AsI’m new to the area, and my firm, it’s also a chanceto introduce myself to colleagues.”

Claudio Undurraga A.Prieto Y Cia AbogadosChile

“This conference is the best place tomeet a huge number of colleagueswho have the same interests as you.

If you attend the conference for a significant lengthof time you make extraordinary friends from acrossthe world. It also provides an opportunity for theprofession to debate key areas of interest that we,as lawyers, can have a direct impact on.”

Maricarmen Plata R.Anzola Robles & AsciadosPanama

“This is an opportunity to hear moreabout what is going on in the rest ofthe world, and particularly to learn

how other lawyers facing similar issues to youaddress those problems. As colleagues from allparts of the world attend the conference, it is possi-ble to come away with a broad array of new ideaswith regards to tackling the issues you’re facing.”

Trial by media – fact or fiction?High-level responsibilityAccording to Bellows, humantrafficking would not exist with-out the complicity or approval ofgovernments, at some level.

Bellows called on lawyers tomake certain that law enforce-ment agencies are enforcing thelegislation that exists in manycountries.

Subramanium argued that,although India has enacted a first-class constitution that expresslyprohibits trafficking, the issuewas never seriously addressed bygovernments or by the state.

Indeed, according toSubramanium, human traffickingis not simply a criminal offence,but a constitutional abnegation.

“Don’t you think that the stateis participating in some sort of anebulous way with trafficking?” heasked. “The fact that a state for 50

or 60 years simply silently looksover this problem, I think is pri-mary proof that the state is active-ly collaborating in this industry.”

According to Subramanium,human trafficking can be placedwithin the same category aspoverty because the state dismiss-es the concept of eradicating bothas utopian ideals.

“That myth needs to be punc-tured and it needs to be puncturedwith a certain degree of force,” hesaid.

Any state that fails to honourthese protocols and permits traf-ficking needs to be visited with eco-nomic and political sanctions, saidIndia’s former Solicitor General.

At the end of the session, the IBAannounced the creation of aPresidential Task Force onHuman Trafficking, and a con-crete project for the IBA to carryout in the next years.

Human traffickingMONDAY HIGHLIGHT

SESSION NAME

Journalism, the media andcriminality

Key takeaways• UK panelists defended theircountry’s strict approach topre-trial publicity;

• US panelists denied anyconnection between presscoverage and trialoutcomes.

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