Click here for Special Report I, here for Special Report II, here for Report III, here for Report IV, here for Report V and here for the Final Report.
The conference so far has been hectic because the sessions overlap and take at least half a day each. I probably need another holiday after this.
It is getting colder in Prague; a shirt and a sweater is now not enough. It is however heartening to note that the heart of IBA, which is the IBA Council, is still hot on promoting the rule of law. The Council passed the following resolution with a near unanimous majority, with a small number of member organisations, the Israeli bar association among them, declining to support the resolution:
“The International Bar Association (IBA), the global voice of the legal profession, deplores the increasing erosion around the world of the rule of law. The IBA welcomes recent decisions of courts in some countries that reiterate the principles underlying the rule of law. These decisions reflect the fundamental role of an independent judiciary and legal profession in upholding these principles. The IBA also welcomes and supports the efforts of its member bar associations to draw attention to and seek adherence to these principles.
An independent, impartial judiciary; the presumption of innocence; the right to a fair and public trial without undue delay; a rational and proportionate approach to punishment; a strong and independent legal profession; strict protection of confidential communications between lawyer and client; equality of all before the law; these are all fundamental principles of the rule of law. Accordingly, arbitrary arrests; secret trials; indefinite detention without trial; cruel or degrading treatment or punishment; intimidation or corruption in the electoral process; are all unacceptable.
The rule of law is the foundation of a civilised society. It establishes a transparent process accessible and equal to all. It ensures adherence to principles that both liberate and protect. The IBA calls upon all countries to respect these fundamental principles. It all calls upon its members to speak out in support of the rule of law within their respective communities.”
The European Court of Human Rights for the business lawyer
This was a showcase session featuring, among others, Judge Elisabet Fura-Sandstrom who sits in the European Court of Human Rights in Strasbourg, France.
The speakers traced the rise of human rights principles in the corporate world both to protect the interests of business clients as well as a means to extending corporate social responsibility and good governance by businesses vis-à-vis the society. This has been done by international convention such as the European Convention on Human Rights and the United Nations Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights. The former affects State parties which have ratified the Convention while the latter affects corporations directly.
The European Court has developed the jurisprudence in respect of the Convention in an active way as the Convention is a “living document” which seeks to protect human rights and achieve a balance between the administration of countries with the rights of its citizens in democratic societies. The showcase illustrated how the Court has read the Convention in the way of converging human rights and corporate practices.
The normative value of human rights is good for business clients as it demands regulatory authorities (particularly in the area of takeovers, mergers and securities law) to be transparent and fair in both their decisions and the process which led to their decisions. It allows the application of rights–based elements and human rights law by lawyers to further and protect the interests of their clients against adverse decisions made by the authorities.
The duty to give reasons and to act even-handedly as a pillar of administrative law at crucial stages of the decision-making process by the authorities forces them to “show their hand early” which will assist the client to position itself strategically for possible eventualities, and even litigation.
Human rights norms constrain the authorities from making decisions which are, on a substantive basis, in breach of the same. It allows exacting scrutiny by lawyers of substantive decisions where fundamental freedoms such as free expression and privacy may only be curtailed if the authorities could, on a substantive basis, justify the curtailment by satisfying the criterion of necessity, proportionality and pressing social need.
Patrick Doris (Freshfields, London, England) gave an example of a holidays agency which advertised its “Couples Holidays” which were meant for couples only. Where the holidays were held, homosexuality was banned, and thus the agency imposed a ban on homosexual couples applying for the holiday. It ran its advertisement in a local area where the local authority objected to it. The local authority, when asked to justify the limitation, failed to respond by showing any pressing social need or necessity because their decision did not protect the homosexual community nor were there complaints that the advertisement was discriminatory.
Doris said that, as a human rights lawyer, he would advise his clients that litigation in the courts should be the last resort. He also described how at times when he appeared before the courts in the UK, judges would give him a look of controlled surprise in response to his arguments based on rights norms in commercial and corporate litigation. Nevertheless, the Convention is useful at the negotiation and discussion stage between business clients and the authorities, and the principles enunciated therein should more commonly be used.
Doris ended by saying that the purpose and width of the Convention is to reach a position that “every court should be a human rights court — from the lowest court to the House of Lords; every public decision-maker or policy-maker should be human rights conversant and every decision should be the subject of vigorous scrutiny on human rights grounds”.
Dr Birgit Spiesshofer (Hengeler Mueller, Berlin, Germany) spoke about corporate social responsibility based on the “triple bottom line” — people, planet and profit. “People” would commonly encompass fundamental rights in particular, labour and workers’ rights. “Planet” would encompass issues such as environmental rights, air pollution, waste management and genetically modified products. “Profit” covers corporate economics such as anti-corruption and bribery issues.
The area of corporate social responsibility and freedoms under the Convention overlap in several aspects. The people dimension is based on classical human rights theory such as the right to life, thought and non-discrimination. The Convention in this respect goes beyond imposing negative obligations on State parties but also demands State parties to positively extend its protection for individual rights. In Gyera v Italy, the Court held that toxic emissions from a chemical plant violated article 8 of the Convention which stated that there should be no interference with an individual’s private and family life. The Court said that article 8 imposed a duty of the State to secure the respect for private and family life and severe air pollution affected the complainant’s family life adversely. Whilst the Convention had not expressly set an environmental standard within the Convention to give a positive right to a clean and healthy environment, the action was still maintainable under the same.
The Convention however does “not hit corporations” but indirectly does so by “hitting the State, to affect the corporations”. This is to be distinguished from the UN Norms which were drafted to hit corporations directly.
The example in the case of Steel & Marvis v United Kingdom is interesting. The complainants were Greenpeace activists who had distributed leaflets against McDonalds raising issues of bad business practices, bad working conditions and causing cruelty to animals. McDonalds won the defamation suit it commenced against the complainants and was awarded damages. The complainants took the matter to the European Court on two grounds, one procedural and the other substantive:
1. That the denial of legal aid to the complainants at the defamation trial violated their rights to a fair trial. The complainants had to defend their case at the trial acting in person.
2. That the decision against them violated their freedom of speech and expression.
In respect of the latter ground, the European Court held that a balance needed to be struck between the protection of the freedom of expression and the reputation of a corporation. The decision in the defamation suit had not struck the correct balance bearing in mind the “chilling effect” such a decision would have on free speech and the important public interest role campaign groups could play to stimulate public discussion by debating business practices. The first complainant was awarded 20,000 euros and the second, 15,000 euros against the United Kingdom.
This case represented an indirect enforcement of corporate social responsibility standards against a corporation through the use of Convention guarantees vide State responsibility.
In Gyera, article 8 of the Convention did not merely compel the State to abstain from emitting toxic material but also a positive duty to protect private and family life. As it extended Convention rights which were duties were drafted in the negative, the European Court effectively decided the matter between the complainant individual and the corporation.
The Convention and through the innovative judgments of the European Court have “opened the way to make corporate social responsibility actionable through human rights law”. But is this adequate?
The arena of corporate social responsibility has given rise to a large number of complaints to the European Court as article 34 of the Convention gives jurisdiction to the Court to hear individual complaints. This makes the Convention unique. The workload of the Court has increased drastically over the years as more NGOs are using the Convention to hold corporations accountable to human rights standards. But any decision is only enforced indirectly through the State and as the territorial reach of the Court is limited to signatory States.
Fura-Sandsrom said that the European Court has a backlog of 80,000 cases, with over 22,000 applications lodged in 2005. The Court has managed to hand down nearly 600 judgments in 2005. The fear is that judges have to sift through “manifestly ill-founded cases” when there are numerous other cases of serious violations.
Given this, the Convention is still a powerful leverage to enforce and write corporate social responsibility principles into the domestic system of law of State parties. It has further encroached into the area of purely contractual agreements between private parties. In Young, an agreement between the union and the employer company that employees are to join only a certain union was found to have violated article 11 of the Convention which guaranteed the freedom of association. Another case was where a Catholic church and employees of the church had agreed that the latter were forbidden from speaking publicly on matters against the church. The Court found this in breach of the Convention guarantees of free speech and expression.
On the issue of satisfaction, the European Court may award complainants just satisfaction but enforceable only against the State and not the actual wrongdoers. The development of the law under the Convention “gives hope that corporate social responsibility is indirectly covered by the Convention which may now be an instrument indirectly promoting corporate social responsibility principles within State parties”.
International laws are coming closer together, and the Convention provides an opportunity for the respect, application and enforcement of human rights norms in business practices. In a globalised world, a combination of pressure on corporations vide soft law, voluntary instruments and society is necessary to ensure governments today, which are lacking in its enforcement of individual rights, do act and act properly.
Young lawyer associations’ summit — Part 1 (Professional development — what a Generation X lawyer expects?)
At 1115, I crossed over to the summit which had started earlier at 0945. It was a very engaging and interactive discussion on what the new generation of lawyers expect and can give. Those born between 1965 and 1980 are considered “Generation X”. The discussion was attended by lawyers from all over the world – Spanish, Australian, Nigeria, Singapore, English etc. The issues and the discussion which took place were as follows, and they intertwined:
- Work culture
The discussion centred on the common problem of working long hours. The consensus was that lawyers want to be treated and feel like human beings, and not just a lawyer. In addition to doing actual lawyer’s work, a lawyer now has to do marketing, management and development which adds on to the pressure. There was nevertheless an acknowledgment that doctors do also work long hours, and long hours are a fact of life.
A partner from Finland did a survey of his 150-strong firm by having the lawyers evaluate the partners, and found that the partners who had high net worth value and brought in the most work incidentally had lawyers under them who were the unhappiest in the firm. He concluded that although statistically, in money terms, those partners were valuable to the firm, the cost of lawyers leaving, hiring new lawyers and retraining them was a burden which must be accounted.
Whilst firms invested in lawyers in the hope that they will not leave, law firms must create environments which are conducive to a normal and balanced working life. There should be initiatives to be taken by firms including for example: social event, drinks, sailing. However, this must be a fundamental shift in mindsets, and not just one-off initiatives.
If targets for the month are not met, how would partners react if they were to consider giving a day off to the lawyers in a month? Is short-term billing targets the concern or long-term dividends?
A lawyer from Bangalore related an incident when he employed a lawyer (X) in his firm. He was told that X was a musical performer and required time to go off work to practise, did not want to work on weekends and needed to take time off every year to perform. As the firm was desperate for a lawyer, X was employed. Over the years, he has found that X, who works from 9am–5pm, is the most efficient and productive lawyer in the firm and bills the highest.
A lawyer from Germany also said that it is for the lawyers to claim a balanced working life and not to expect the firm to do so for them; and this is what he has set out to achieve in his law firm as an associate and he is happy.
- Keeping lawyers within the firm and profession
The consensus was that times have moved on, and it no longer is the case where lawyers only need to work hard and then make it to partnership for an increase in earnings. Lawyers have many more options today than before, and the choices are varied.
Law firms are big businesses and they used to be the epitome of professionalism, but it is no longer the case — it is a “dog eat dog” world now. Life is less certain than before, more fluid and dynamic; and firms should move to accept this reality. People used to be happy with what they had.
But partners are now leveraging on the work of associates – is this economically sustainable? They are reaping immense monetary benefits from the work of the associates. It appears to be an “odd business model”. There was a view that the said model is not sustainable if management had poor management skills despite a large fee-earnings leverage.
A large chunk of the law business depends on the economy. If the economic conditions are not good, does working harder or longer hours make you that extra income? It is always a cycle — there will be the ups and the downs.
A lawyer from Sydney emphasised the need for law firms to have a succession or progression plan, and to involve lawyers in it so that they may be in the know.
This sentiment was echoed by a lawyer from the Channel Islands who said that she wanted a role in the management of the firm even as an associate. She wanted the partners to open up their meetings to associates to be able to gain their feedback and listen to new ideas as the associates are more in touch with the ground.
Another lawyer from Sydney from one of the largest firms in Sydney said that lawyers want to feel part of the firm and the “old behavioural patterns” of partners must change with the increased flow of information and shift in culture over the years. The practice is not like it used to be say, 10 years ago. Partners are not comfortable with this, but it is a reason to keep lawyers from leaving the firm.
- Partnership
The discussion on this topic started by a show of hands as to how many wanted to be partners. There was only one who put up his hand. Why? Some say it is a lifestyle choice, some say they do not want to work as hard as the partners and some say that life as a partner would prevent them from leading a normal family life with children.
Generation X lawyers tend not to seek partnership as they are no longer chasing the dollar signs. They are in a luxurious position because they are still comfortable living as an associate, and it is a choice that their lifestyle is more important.
There was a view expressed that the incentives to be a partner are just not there, and what do you get at the end of the day after working so hard?
There was another view that she did not want to be a partner because she wanted to stay true to her values and not turn into what her friends had become after they became partners where “they lose their personality and spend all their time in the office”.
In the concluding remarks, a lawyer from Mexico (who described himself as Generation X lawyer, started his law firm with 3 other friends and which has now grown to 28 fee-earners) said that “law firms that are sustainable later on are those giving responses to what this generation wants, the profession requires new skills — entrepreneurship, marketing — law firms that can change, be hip, popular, grand will be sustainable. Maybe partners won’t earn as much as they do now but less, but still large and able to share it with their associates to maintain the same standard of living”.
The essential four points made were:
- There will be a convergence of attitudes in the near future between the new generation and the old.
- Today’s practice is about empowerment, access to and information on management of the law business.
- There is an increased recognition that today’s values have changed — lifestyle choices, money no longer the main priority etc.
- There is a shift in behavioural patterns in the way people react to authority — people are more expressive than before because of social values and education.
Young lawyer associations’ summit — Part 2 (Pro-bono work: the benefits of altruism)
Lord Daniel Brennan QC (Matrix Chambers, London, England) chaired this session which discussed pro-bono work. Representatives of Oxfam and Lawyers Without Borders (Avocats Sans Frontiers) spoke about how lawyers could help their work. In particular, Oxfam is now working on a project to assist Third World countries which are in huge debt finds means to have the debt reduced or wiped clean. When it requested lawyers for assistance in the UK, about 1350 lawyers signed up and committed themselves for the project which focused primarily on international trade law. Avocats is an organisation set up by lawyers to assist lawyers and activists around the world. In 1994, they helped Rwanda organise their bar association after a majority of lawyers and judges (who were Tutsi) were massacred or imprisoned. It is currently working in East Timor to assist in building their legal framework including establishing their bar association.
Pro-bono work is important because it bridges the gap of demand and supply. Most NGOs and civil society groups need legal advice and representation on a pro-bono basis as they have no means to engage and pay lawyers.
Pro-bono work should be structured as a programme within every firm and in writing, with deep commitment to the cause. Firms should not only pay lip service to pro-bono work or use it as a marketing exercise but must really believe in it.
In Canada, the Law Society has mandated pro-bono work for all law firms as a contribution back to the community. As part of its strategic plan, this “requirement to give back” has been taken on board with enthusiasm with firms and there are firms which even file their pro-bono programmes with the Society.
Clifford Chance has recently started an “International Lawyers Project” aimed at having a large pool of lawyers ready to do pro-bono work, and the project is currently attempting to raise funds.
Pro-bono work is so well-established in the UK because pro-bono cases are usually the difficult cases which have a massive effect on the country or society at large without necessarily being as important for the individual litigant. It is reported that there are times the Chief Justice would request the Bar behind the scenes to appear as amicus for cases which are of public importance.
Brennan summarised the session by emphasising the following:
- Pro-bono adds value to legal firms, and increases the motivation and commitment of those engaged in such work. It will keep morale high and increase the chances that those engaged in such work will continue in the profession.
- There should be a “Rapid Response Team” of “law heavyweights” ready to take on cases on an urgent basis and IBA is good place to form such a team.
- There should be continued liaison between members of developed countries and those developing in order that exchange programmes may be executed where lawyers from developing countries could spend time in law firms of developed countries to experience and learn about pro-bono work, and vice-versa.
- Pro-bono work relies heavily on humanitarian intervention based on rights norms but the first place we should always start is at our own homes — our communities, our churches and our cities.
- The purpose of being a lawyer to make money and to support a family is accepted but when one becomes older and is asked “what have you done in the profession to help people”, at least one is able to say that “I did something, not everyday, not all the time but some of the time”.
Young lawyer associations’ summit — Part 2 (Guidelines for setting up a national young lawyers’ association)
This session dealt with different forms of young lawyers associations in different jurisdictions. It also discussed ways lawyers in different countries may set up their own young lawyers associations.
The criteria of a “young lawyer” in certain bar associations such as Australia is one who is either 5 years in practice or 30 years old. Some associations use only one such criterion.
In Nigeria, where seniority is very dear to its practitioners, the impetus on the young lawyers has been to become political and vocal in their cause and seek to establish their own association to protect their interests.
The session ended with the assignment of tasks for lawyers to assist IBA is producing a document as guidelines for the establishment of young lawyers associations.
The Bar Council’s National Young Lawyers’ Committee and some of the State Bar’s young lawyers committees have been established. The problem is still the apathy of the young lawyers to speak out and stand up to be counted. It is a divide which needs to be bridged. Some few years ago, the common complaint by Council members were that young lawyers do not forward or advocate their issues which could be taken on by Council and hence, nothing is done. There is recently however an increased mobilisation of young lawyers and advocacy of their issues, among others, as contained in the Pangkor Young Lawyers’ Convention Statement 2005.
The Statement provides a way for continual and increased dialogue between the young lawyers and Council. It is the hope of a great number of young lawyers that the matters in the Statement will be discussed by Council for implementation very soon; whilst not forgetting that the lobby to abolish section 46A should continue in tandem.
After the final session of the day, there was a Young Lawyers’ reception at the Corinthia Towers Hotel. I attended the function, and rushed to catch a glimpse of the synagogue before it got dark. I managed to take some photographs but it may have been too late as the light was dim. I will try again the next day. It is the oldest preserved synagogue in Central Europe and it was built in the early gothic style in the late 13th century, richly adorned by stonework. Up to the present day, it serves as a house of prayer and the main synagogue of the Prague Jewish community.
I then walked around on the cobbled streets and had dinner at U Fleku, a microbrewery in Nove Mesto, which brews its own brand of dark beer and serves good Czech fare on long tables. The beer was once again excellent and so easy-to-drink that you are not sure how many you have had.
Source: https://www.malaysianbar.org.my/article/news/bar-news/news/special-report-vi-from-prague-echr-and-young-lawyers. Archived at https://perma.cc/CFL9-77RS
