ASIL 2019 Recap: Litigating Climate Change: New Legal Challenges

Climate_change_icon.pngBy Mariana Newman

At 9:00am on Friday, March 29, 2019, Judith Levine, Senior Legal Counsel at the Permanent Court of Arbitration in The Hague, moderated a panel discussion which addressed, in her words, the role for lawyers to address climate change when political leaders do not. Joining Levine were Michael Gerrard, Andrew Sabin Professor of Professional Practice at Columbia Law School and director of the Sabin Center for Climate Change Law; Kristin Casper, Senior Legal Counsel for Strategic Litigation at Greenpeace International; and Paula Henin, a senior associate at Freshfields in New York working in the international arbitration group. In her opening remarks, Levine said that litigation in this area is an opportunity for lawyers to demonstrate “courage, creativity, and innovation.”

Gerrard highlighted a number of areas of litigation. Around 1300 climate lawsuits have been filed around the world, with the United States leading the way in the number of suits, followed by Australia and the United Kingdom.

In the United States, the largest number of cases filed have been under the National Environmental Policy Act, claiming an insufficient consideration of climate change in environmental impact reports.

Gerrard mentioned that public nuisance doctrine cases have reemerged under state common law, since the Supreme Court had held in American Electric Power v. Connecticut that the Clean Air Act displaced any federal common law claims.  There have also been securities fraud lawsuits, mostly against Exxon.

Gerrard discussed an ongoing case brought under public trust doctrine and substantive due process theories, Juliana v. United States. In that case, young people sued the United States government arguing that it has an obligation to protect the atmosphere and seeking an order that would force the government to aggressively cut back on greenhouse gas emissions. Currently the 9th Circuit interlocutory appeal is being briefed.

He then turned to cases from outside the United States, including Urgenda Foundation v. State of the Netherlands. In that case, a Dutch environmental group and 800 Dutch citizens sued their government, arguing that it was not doing enough to reduce its greenhouse gas emissions. The trial court ruled that the government had violated their duty of care under Dutch law to take climate change mitigation measures. The appellate court affirmed the judgment for the plaintiffs under different grounds: that the government had an obligation under Articles II and IX of the European Convention on Human Rights to do more to fight climate change. This case is now being appealed to the highest court in the Netherlands.  Gerrard also discussed cases in Pakistan and Peru.

Next, Kristin Casper from Greenpeace International took to the podium. She described climate change as a “human rights crisis” and highlighted three of Greenpeace’s cases where local communities are using legal tools to “seek climate justice.”

In Norway, Greenpeace Nordic partnered with a Norwegian organization that sued the government, arguing that the issuance of oil and gas leases in Arctic waters was in contradiction with Norway’s international commitments and a breach of constitutional protections for future generations, the right to a healthy environment, and other human rights standards. The lower court found that the right to a healthy environment was, as Casper called it, a “claimable right with teeth,” but it did not find that the right was violated in this particular factual scenario. The case has been appealed.

In Switzerland, Greenpeace Switzerland supported a group of over 1000 senior citizen women who brought a case arguing that the government’s inadequate climate change policies contributed to heatwaves, putting their lives and health at risk. The decision in the lower court was not favorable, but the case is now on appeal.

In the Philippines, a group of Typhoon Haiyan survivors joined by Greenpeace Southeast Asia-Philippines and other organizations filed a legal petition with the Commission on Human Rights, seeking to hold major carbon-producing companies accountable for climate impacts that result in human rights harms. There have been 12 hearings, 26 community witnesses, and 52 experts who have given evidence, all of which can be viewed online.  The Commission has the ability to issue a report with recommendations and to continue to monitor the human rights situation in the Philippines with respect to climate change.

Finally, it was Paula Henin’s turn to share her insights.  First, she discussed mechanisms for interstate disputes arising out of substantive obligations of the Paris Agreement.

Article 14 of the United Nations Framework Convention on Climate Change is incorporated by reference in Article 24 of the Paris Agreement. Article 14-1 allows parties to settle disputes through negotiation and the peaceful means of their own choice, which could include arbitration or mediation. Article 14-2 states that contracting parties may consent by a separate written instrument to the compulsory submission of disputes to the International Court of Justice and/or to arbitration in accordance with procedures to be provided in an arbitration annex to be adopted by the Conference of the Parties “as soon as possible.” However, no arbitration annex has yet been adopted.

Henin also described the possibility for the UN General Assembly to refer legal questions to the International Court of Justice for advisory opinions. There has been discussion of using that mechanism for climate change issues.

Next Henin turned to disputes involving private actors. Most investor-state disputes go to arbitration under treaties or under investment contracts. In the arena of treaty-based arbitration, Henin said that there have been over 40 claims brought against Spain, Italy, and the Czech Republic after those states backpedaled on incentive schemes put in place to promote renewable energy levels. She said that some recent arbitral decisions have opened the door for a new mechanism in investor-state arbitration: environmental counterclaims against investors brought by states. Investment contracts may incorporate specific emission reduction obligations or arbitration clauses may be included in contractual commitments that arise directly out of Kyoto Protocol mechanisms like carbon emission trading or climate finance.

To conclude the panel, Casper exhorted the attendees to devote their intelligence and resources to working to make progress on climate change.

ASIL 2019 Recap: Regional Human Rights Bodies as Instruments of International Law: Contradiction and Fragmentation

By Caitlin Hunter

ASILRegional Human Rights Organization of American States.JPG

Organization of American States

In Regional Human Rights Bodies as Instruments of International Law: Contradiction and Fragmentation, panelists discussed fragmentation among the three major regional human rights courts: the European Court of Human Rights (ECtHR), the Inter-American Court of Human Rights (IACtHR), and the African Court on Human and Peoples’ Rights (ACtHPR). Elena Abrusci provided insights from her research at the University of Essex’s Human Rights Centre. Silivia Serrano Guzmán and moderator Christina Cerna drew on their experiences working for the Inter-American Commission on Human Rights. Finally, Thomas Antkowiak drew on his work advocating before the IACtHR and ACtHPR as director of the International Human Rights Clinic at Seattle University School of Law. The panelists provided detailed, meticulously researched analysis of what fragmentation is; why and when it happens; and its impact.

  1. What is fragmentation?

Fragmentation occurs when international tribunals reach conflicting decisions on how to apply international law to similar scenarios.

  1. Why does fragmentation happen?

Abrusci identified two primary reasons:

  • Different judges. Abrusci’s data suggested that judges on the IACtHR and the ACtHPR are worldlier than their counterparts on the ECtHR. 70-80% of ACtHPR judges and 50-60% of IACtHR judges had received their legal education on another continent, mostly in Europe. In contrast, less than 10% of ECtHR judges had received their legal education outside of Europe. Similarly, 10-20% of ACtHPR and IACtHR judges had worked for a UN human rights body but less than 4% of ECtHR judges had done so.
  • Different deference standards. The ECtHR applies the margin of appreciation doctrine, which allows states some flexibility in applying the European Convention on Human Rights (European Convention) and takes into account the current consensus among European states. In contrast, the IACtHR applies the conventionality control doctrine, which requires all states to fully comply with the American Convention on Human Rights (American Convention).
  1. When does fragmentation happen?

Rarely. Panelists agreed that convergence is the norm and fragmentation is the exception. The IACtHR routinely looks to ECtHR jurisprudence and the ECtHR has looked to IACtHR jurisprudence in areas where it is more developed, as when the ECtHR adjudicated forced disappearances in Kosovo. However, panelists identified several notable examples of fragmentation:

  • Same-sex marriage. The ECtHR observed that most European states do not allow same-sex marriage and, applying the margin of appreciation, declined to interpret the right to marriage to include the right to same-sex marriage.[1] In contrast, the IACtHR explicitly rejected the ECtHR’s reliance on consensus and suggested that the right to marriage also applies to same-sex couples.[2]
  • The right to a criminal appeal. A protocol to the European Convention explicitly states that the right to a criminal appeal does not apply if the defendant is convicted by the country’s highest court or after an acquittal is overturned.[3] In contrast, the IACtHR has held that the right to an appeal applies in both of these situations.[4]
  • Indigenous property rights. The ECtHR has repeatedly failed to acknowledge indigenous collective property rights, ignoring not only well-developed IACtHR jurisprudence, but also an ILO convention and UN resolution.[5]
  • Reparations to victims. The ECtHR provides only a limited set of primarily financial remedies, while the IACtHR employs holistic remedies such as ordering the state to build medical centers, provide victims with scholarships, and formally apologize. Generally, panelists preferred the IACtHR’s approach but acknowledged that the IACtHR had sometimes ordered reparations so broad that they were effectively impossible to implement, as when the IACtHR ordered Honduras to ensure that all of its hundreds of prisons complied with all international human rights laws.

There are also notable examples where the courts have fragmented and then re-converged:

  • Access to information. The IACtHR interprets the right to freedom of expression to include a right to access to information.[6] The ECtHR initially rejected this view[7] but has gradually moved towards it, invoking the margin of appreciation and the growing consensus of European states in favor of access to information.[8] Paradoxically, although the ECtHR’s margin of appreciation typically causes fragmentation, here it permitted the ECtHR to converge towards the IACtHR.
  • The right to life. Under the IACtHR’s vida digna (dignified life) doctrine, the right to life incorporates social, economic, and cultural rights, such as the rights to food, shelter, and work. Although the UN Human Rights Committee has adopted the vida digna doctrine,[9] the ECtHR has generally ignored it and the ACtHPR has explicitly rejected it.[10] Advocates for social, economic, and cultural rights argue that treating them as a subset of the right to life subordinates them to civil and political rights and hinders their individual conceptual development. The IACtHR has begun to converge with the other two courts, applying the vida digna doctrine only to especially vulnerable groups, such as homeless children,[11] and finding alternative strategies to incorporate social, economic, and cultural rights.[12]
  1. Is fragmentation bad or good?

Like the panelists on the earlier Fragmentation in International Data Protection Law panel, panelists did not believe that fragmentation was inherently bad. In fact, panelists argued that some fragmentation among the regional human rights courts could help propel the development of new theories in international human rights law.

 

[1] Schalk and Kopf v. Austria, App. No. 30141/04, Eur. Ct. H.R. (2010), http://hudoc.echr.coe.int/eng?i=001-99605; Chapin and Charpentier v. France, App. No. 40183/07, Eur. Ct. H.R. (2016), http://hudoc.echr.coe.int/eng?i=001-163436.

[2] State Obligations Concerning Change of Name, Gender Identity, and Rights Derived from a Relationship Between Same-Sex Couples, Advisory Opinion OC-24/17, Inter-Am. Ct. H.R. (ser. A) No. 24 (Nov. 24, 2017), http://www.corteidh.or.cr/cf/Jurisprudencia2/busqueda_opiniones_consultivas.cfm?lang=en.

[3] Article 2(2) of the Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No.117, https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/117.

[4] Barreto Leiva v. Venezuela, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 206 (Nov. 31, 2009), http://www.corteidh.or.cr/docs/casos/articulos/seriec_206_ing.pdf; Mohamed v. Argentina, Preliminary Objections, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 255 (Nov. 23, 2012), http://www.corteidh.or.cr/docs/casos/articulos/seriec_255_ing.pdf.

[5] Elena Abrusci, Judicial Fragmentation on Indigenous Property Rights: Causes, Consequences and Solutions, 21 The International Journal of Human Rights 550–564 (2017), https://doi.org/10.1080/13642987.2017.1307830.

[6] Claude-Reyes et al. v. Chile, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 151 (Sept. 19, 2006), http://www.corteidh.or.cr/docs/casos/articulos/seriec_151_ing.pdf.

[7] Leander v. Sweden, App. No. 9248/81, Eur. Ct. H.R. (1987), http://hudoc.echr.coe.int/eng?i=001-57519.

[8] Magyar Helsinki Bizottság v. Hungary, App. No. 18030/11, Eur. Ct. H.R. (2016), http://hudoc.echr.coe.int/eng?i=001-167828.

[9] General Comment 36, para. 3 (2018), https://tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documents/1_Global/CCPR_C_GC_36_8785_E.pdf.

[10] African Commission on Human and Peoples’ Rights v Kenya, App. No. 006/2012, Judgement, 26 May 2017, para. 154, http://www.african-court.org/en/images/Cases/Judgment/Application%20006-2012%20-%20African%20Commission%20on%20Human%20and%20Peoples%E2%80%99%20Rights%20v.%20the%20Republic%20of%20Kenya..pdf.

[11] Villagrin-Morales et al. v. Guatemala, Merits, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 63 (Nov. 19, 1999), http://www.corteidh.or.cr/docs/casos/articulos/seriec_63_ing.pdf.

[12] Lagos del Campo v. Peru, Preliminary Objections, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 340 (Aug. 31, 2017), http://www.corteidh.or.cr/docs/casos/articulos/seriec_340_esp.pdf.

ASIL 2019 Recap: Fragmentation in International Data Protection Law

By Caitlin Hunter

In Fragmentation in International Data Protection Law, panelists discussed the rapidly spreading and often contradictory laws protecting consumer data, incorporating the perspectives of corporations (Geff Brown, Microsoft), consumer activist groups (Carolina Rossini, Access Now), academia (Peter Swire, Professor of Law and Ethics at Georgia Tech), and government (Justin Antonipillai, formerly of the Department of Commerce and currently of WireWheel). Here are five key take-aways:

  1. Data protection laws have gone from a parochial European phenomenon to a global trend.

Traditionally, European countries have been particularly active in pushing for data protection, as shown most recently in the EU’s enactment of the General Data Protection Regulation (GDPR). However, laws are spreading rapidly, with over one hundred countries implementing some sort of protections. All four of the BRICs countries have adopted or are considering data protection laws and the U.S. Congress is increasingly debating the issue. U.S. states are also passing data protection laws, including the recently enacted California Consumer Privacy Act and initiatives to pass laws in Vermont, Washington, and Massachusetts.

ASILFragmentation AccessNow homepage.PNG

Website of AccessNow, a consumer activism group, where panelist Carolina Rossini works.


2. Data’s move into the cloud means that data protection laws anywhere affect data everywhere.

Today, users anywhere may be accessing data on a server located anywhere and, as a result, domestic or regional data protection laws impact the entire world. U.S. organizations scrambling to comply with the EU’s GDPR are familiar with this, but the impact flows in the opposite direction, too. Before the recent passage of the U.S. CLOUD Act, a police officer who was investigating a local crime in the EU but needed evidence from a server in the U.S. might have to wait a year or more to get a warrant form a U.S. judge under the Electronic Communications Privacy Act. These concerns are not hypothetical- as a Belgian audience member heatedly complained, Microsoft’s Skype is currently fighting for its right not to provide wiretaps ordered by Belgian courts.

ASILFragmentation GDPR.PNG

GDPR website

 

 

  1. Fragmentation between data protection laws stems from different regions’ fundamentally different privacy frameworks.

European countries view privacy as a basic human right, enshrined in their Constitutions, the European Convention on Human Rights, and the Charter of Fundamental Rights of the European Union. This contrasts sharply with the U.S.’s strong emphasis on freedom of information. Typically, Americans assume that personal data can be used, unless there is a justification for prohibiting it, while Europeans assume that personal data cannot be used, unless there is a justification for permitting it. One panelist reported that an EU official privately confided that big data is probably illegal under the GDPR. If this conflict is not resolved, it will upend industries that have premised their future on massive use of big data.

ASILFragmentation WireWheel homepage.PNG

Website of WireWheel, where panelist Justin Antonipillai works.

 

  1. Compromises have broken down.

For years, U.S. companies and European countries accommodated their conflicting frameworks through a deal in which U.S. companies publically pledged to comply with EU data protection laws, allowing the U.S. Federal Trade Commission to take action against the companies for misrepresentation under U.S. law if the companies violated EU law. However, the future of this deal is in doubt, as the EU grows increasingly concerned with privacy. In 2015, the European Court of Justice (ECJ) struck down the original version of the deal, called the U.S.-E.U. Safe Harbor, in Maximillian Schrems v Data Protection Commissioner, C-362/14. Although the U.S. Department of Commerce quickly negotiated a new deal, now dubbed the EU-U.S. Privacy Shield, Schrems challenged the new deal, too, and it is again headed back to the ECJ, its future dubious. If the ECJ decides that U.S. privacy protections remain inadequate, this will impact not only tech companies in the U.S. but in any country that does not share the EU’s high level of privacy protection.

  1. Consistent laws are needed- but not necessarily uniform laws.

The fragmentation of data protection law has left tech companies scrambling to reconcile hundreds of conflicting laws. Within the U.S., many now advocate for a single, national data protection law, including the Chamber of Commerce and panelist Justin Antonipillai. However, even panelist Geff Brown of Microsoft believed that it was not only unlikely but undesirable to push for uniform laws internationally. Instead, he encouraged countries to develop a global forum that would allow them to create laws that reflect their own values but are consistent enough to be interoperable.

ASIL 2019 Recap: The Law (and Politics) of Displacement

By Meredith Capps

ASILdisplacement.jpg
On Thursday, March 28, Jill Goldenziel of Marine Corps University moderated a discussion on legal and political challenges surrounding forced displacement, which is at an all-time high. Panelists included Itamar Mann of the University of Haifa; Daniel P. Sullivan of Refugees International; Alice Farmer, the Legal Officer for UN Office of the High Commissioner for Refugees (UNHCR)in Washington, D.C.; and Kristina Campbell, a clinical faculty member at the University of the District of Columbia.

Mann discussed some history of international law governing displaced persons, including the 1923 Treaty of Lausanne, which, in part, facilitated population exchange and redistribution between Greece and Turkey. In the human rights era following the World Wars, the forced movement of groups of persons became “the paradigm of a criminal act,”  with freedom of movement established in the Universal Declaration of Human Rights, and forced movement of populations prohibited in the Geneva Conventions. Mann identified the movement of Syrians out of Greece as a current challenge, and climate change as the impetus for movement a future issue.

Sullivan discussed the displacement of the Rohingya from Myanmar to Bangladesh, where roughly 1 million people now reside in camps. Rendered stateless in Myanmar as “illegal Bengalis,” the Rohingya are also not protected as refugees in Bangladesh (who has considered moving some to a disaster prone island in the Bay of Bengal). Despite clear evidence of criminal activity by Myanmar officials, an ICC referral may be blocked by Russia and China, and fact-finding missions and target sanctions have failed to impact change.

Farmer noted that with only 1/4 to 2/3 of displaced persons presently returning to their home state, traditional displacement solutions are no longer viable. Though some characterize migration north from Honduras, Guatemala, and El Salvador as economic migration, current patterns suggest a forced displacement, and UNHCR takes the position that many of those fleeing violence in these regions satisfy refugee criterion. The number of families migrating is particularly significant, and suggests that deterrence is ineffective. These changes in the nature of persecution test of weaknesses in international law, with adjudicators inconsistent in their approach to defining “refugee,” and burden sharing conversations amongst states fraught. While UNHCR is working to increase capacity in the Mexican asylum system and facilitate local integration, its capacity remains vastly below that of the U.S.

Campbell discussed U.S. immigration family detention centers, a new concept established during the mid-2000s. Per the Flores settlement agreement regarding detention conditions for minors, immigration authorities should preference release of minors to parents, and maintain humane, non-secure facilities. She described the few family detention centers in the U.S., and her clinic’s work assisting families in those centers, including credible fear reviews. Campbell said that the Trump administration’s June 2018 executive order did not, in fact, alter its zero tolerance policy that facilitated family separation, and it has no plan to reunite families separated as a result.

The panelists discussed several recurring, fundamental issues during the question-and-answer period. One was the idea of repatriation, with efforts to repatriate Rohingya during the 1970s cited as an effort that failed due to lack of political will, and safety concerns on the part of the group itself; when root causes remain unaddressed, repatriation is not a viable option. Domestic courts do, at times, enforce international norms to protect displaced persons, citing the East Bay Sanctuary Covenant case, but judicial enforcement can generate a backlash. Terminology used to characterize a situation can also either boost or diminishing political will. For example, when an NGO or state uses “ethnic cleansing,” rather than genocide or “crimes against humanity,” public sense of urgency may diminish. Conversely, frequent use of the term “crisis” or “surge” by advocacy groups and the media may desensitize the public.

Goldenziel also discussed the Global Compacts for Refugees and Migration, nonbinding agreements negotiated by many states, including the U.S., and adopted by the UN General Assembly, but whose status under international law is unclear. Negotiations resembled those for a treaty, with some states lodging statements similar to RUDs, and some states appear to consider it forceful despite its nonbinding status. The U.S. withdrew from the compact, citing sovereignty concerns.

ASIL 2019 Recap: Late Breaking Panel: BREXIT and International Law

BrexitBy Marylin Raisch

Moderator: Oonagh Fitzgerald, Director of the International Research Program, Centre for International Governance Innovation, Ontario, Canada

Speakers: Robert Howse, New York University School of Law; Jessica Simonoff, U. S. Department of State; Sir Michael Wood, 20 Essex Street Chambers; Joao Rodrigues, European Parliament Liaison Office

The fact that the very day of this panel at ASIL was originally “Brexit Day,” that is, the day the UK Parliament was to exit the European Union, says a great deal about Brexit and the crisis at the nexus of international and constitutional law that it represents. However, it may happen April 12 if she cannot get her plan passed on this day, which would have given the UK until May 22nd instead.[1] (Or, as of this writing, at the end of this year if Labour cannot join up? Who knows…). This late-breaking panel was scheduled to end at 10:30 a.m., when the straw polling in Parliament on Prime Minister Teresa May’s proposal was to begin. And so it goes. (We learned soon after the panel session broke up that the proposal failed).

After briefly reviewing the timeline from the referendum in 2016, moderator Oohagh Fitzgerald provided a summary of the U.K. Supreme Court Decision of R (Miller) v Secretary of State for Exiting the European Union [2017 UKSC 5]  (January 24, 2017). This is notable since the ruling of the court established that the UK executive could not just notify the European Council of its intention to withdraw from the EU; as with other UK treaties, an Act of Parliament would be required to permit that communication. (There is now in fact a European Union (Notification of Withdrawal) Act 2017 as of Royal Assent dated March 16, 2017). With at least this basic context in place, and some reference to the role of House of Commons speaker Bercow in requiring substantial changes before another vote on the same matter could take place, the Moderator posed a series of questions to the panel.

  1. What is the state of international law in the UK in light of BREXIT? Does it demonstrate that international law is working as it should?

Panelists articulated several perspectives on this excellent question and seemed to cover the range from internationalist to newer reassertions of sovereignty. For example, Sir Michael Wood, who participated in negotiation of the UK treaty of access to the EU in his time as an EU-focused lawyer, stated that EU law is not really autonomous. It is embedded in treaties and so it is largely part of public international law. The issue of Northern Ireland, and the UK ideally remaining in some sort of customs union to avoid a hard border, may become one of rules of interpretation. There is disagreement between the UK and the EU on whether the art. 50 withdrawal mechanism operates to contract the UK out of even customary international law rules. While Sir Michael pointed out that some MPs think “fundamental” and “unforeseen” changes in circumstances are manifested in the backstop situation, and Brexiteers (pro-Brexit MPs and ministers) think this might permit departure from the Brexit agreement (and its backstop under art. 62 of the 1969 Vienna Convention on the Law of Treaties), he is not sure that this would be so. (Brexiteers want to prevent an eternal tie to the customs union). Many are skeptical that evidence of concern over an issue such as that, expressed in advance, could ever allow that issue to be called “unforeseen.” This panelist shared that skepticism, as he is more of an internationalist and former lawyer working with the UN International Law Commission and the Foreign and Commonwealth Office.

A different view was taken by the panelist from the current US State Department. Jessica Simonoff viewed Brexit as an outsider and saw it as not about development of supranational governments but rather as showing the ongoing significance of national identity. The rules are developed by consent, as underscored by the ability to depart from a treaty.  International law is alive and well because even after the UK delegated some of its international negotiating authority to the EU, it now can re-familiarize itself with some international law rules.

Professor Howse of NYU Law then contributed insights from international economic law as he pointed out that the UK would still be under the multilateral rules of the WTO. The logistics of new trade agreements and the hard border are not like the arrangements around which supply chains are organized. Pro-Brexit forces seem to him not to understand how new globalized trade actually works now, and a hard Brexit would create initial chaos with serious shortages of goods, at least temporarily. He also commented on the politics of Brexit, which he attributed in part not to a return to lost sovereignty, but to the work of elites using populism for political career advancement.

Panelist Rodrigues quipped that he “owns” his hat as EU bureaucrat. However, he prefers the term civil servant, a profession her noted ironically was established by the British.  The EU is an international organization, but one created by a body of laws that has a constitutional nature. He sees Brexit not really a legal question, because it is allowed under the treaty in the procedure outlined by the UK case. Moreover, a case went to the European Court of Justice on the issue of unilateral withdrawal from the Brexit process, and it was ruled permissible if done democratically. So the legal part is all sorted. But he asked the political question of how does a member state get itself to a decision to leave? What is disturbing is that here we are on Brexit Day and there is no clear manifestation of British will. International law is well; political process in Britain is not.

  1. May cannot use crown prerogative per the Miller case, in this instance of a treaty, but now can she not move ahead with a statute in place?

Sir Michael Wood pointed out that even with some of the specific legal hurdles surmounted, the situation carries huge implications for UK constitutional law and there should never have been a referendum. While the rule of law and the idea that a minister cannot put same issue to vote twice in same Parliament is the same rule that in UN from parliamentary procedure.  Treaties are executive and Parliament is not usually part of negotiations. In this case it has led to big problems.

Ms. Simonoff and Professor Howse, sharing a US perspective, observed that whether the UK is able to pull out of treaty has been moved to Parliament as a matter of constitutional law. Simonoff then compared the process to NAFTA withdrawal and Congressional involvement in those types of agreements. Howse noted and agreed that NAFTA would need some Congressional action for withdrawal. For WTO withdrawal, he speculated, were it to be contemplated, it would have to be based on resolutions of Congress, because the provision for review works through a Congressional process.

Rodrigues noted that there the Task Force on Article 50 Negotiations website was quite transparent, and indicated publicly what they would or would not accept. The EU 27 were united in how to deal with situation. Unlike Professor Howse, however, he thought populism played a crucial role.

  1. Is there a new bilateralism? Will getting out of massive relationship make the UK able to enter into such new agreements? Moderator Fitzgerald noted that European Council President Tusk thought bridging gap between any popular vote and orderly obligations needs to be worked out ahead and we have not seen that here in concrete plans for a new arrangement.

While Sir Michael Wood observed that the EU is not really multilateralism of the usual kind, Jessica Simonoff of US State thought that while bilateralism may simplify a discussion, a treaty negotiation is never really bilateral, as there are other voices in the room. Actions in the UK will always affect the EU. Contracts in many areas will be affected in the realm of private parties (for example, phone roaming fees now in EU after Brexit).

Professor Howse noted that ironically the less-discussed fall-back rules for the UK is a much bigger WTO multilateralism. The EU has now proven that it is a community of choice and right to depart is a real right. Euro-skeptics can now be shown that this is not like the old Soviet Union (to exaggerate) and that the EU made a good faith response. In his role as the EU civil servant on the panel, Mr. Rodrigues agreed that the EU will have to be flexible and negotiate a new trade agreement with the UK itself, so that is certainly bilateral.

  1. Q and A from the attendees consisted of three main questions:
    1. Will there be a way to adjudicate new disputes if there is a hard Brexit?
    2. Will the Good Friday Agreement and human rights in general be respected through some inclusion of the EU treaties’ principles on fundamental freedoms, and equality before the law, as applied in Ireland/N Ireland?
    3. Can the panel address what can be fairly referred to as a dishonest referendum? It was a dishonest vote: had it been between Remain and a version of Brexit, Remain would have won. The referendum was not an exercise in democratic will because no specific version of withdrawal was proposed.

The panelists answered all three questions together. Sir Michael Wood does think that temporary fixes will be used in a hard Brexit regarding air travel etc. He mused that the UK is paying to leave, and what if they say won’t pay if EU does not approve withdrawal agreement? Ms. Simonoff agreed that now that more information available, a second referendum could be good idea and not anti-democratic. Professor Howse thought democracy was manifested in the first vote, but people are also free to change their minds. Joao Rodrigues stated that the EU just sees it as done deal. Some provisional measures were taken by Council and Parliament to address a no-deal Brexit, such as in areas of customs, pharmaceuticals, etc., about 18-20 special measures, in fact. He thinks financial obligations of the agreement will come into the negotiations for a new UK- EU trade agreement, and rights of citizens as between the two jurisdictions will also play a part. He bases this on the UK rebate on fees that Prime Minister Margaret Thatcher negotiated in the 1980s as manifestation of UK exceptionalism; they got it in 1984, so perhaps now as well.

As the panel ended and everyone left ready to check phones for news of the impending vote, all panelists- and attendees, no doubt- seemed to agree that whatever else it may be, Brexit has been good for stimulating interest in international law, and very good for lawyers.

 

[1] Update and Brexit timeline summary from a research report posted at the official Parliament website: “In a referendum held on 23 June 2016, the majority of the UK electorate voted to leave the European Union.

On 29 March 2017, in writing to European Council President Donald Tusk, the Prime Minister formally triggered Article 50 and began the two-year countdown to the UK formally leaving the EU (commonly known as ‘Brexit’).

The UK has long been expected to leave the European Union at 11pm on 29 March 2019.  However, following a House of Commons vote on 14 March 2019, the Government sought permission from the EU to extend Article 50 and agree a later Brexit date.

On 20 March 2019 the Prime Minister wrote to European Council President Donald Tusk, asking to extend Article 50 until 30 June 2019.

Following a European Council meeting the next day, EU27 leaders agreed to grant an extension comprising two possible dates: 22 May 2019, should the Withdrawal Agreement gain approval from MPs next week; or 12 April 2019, should the Withdrawal Agreement not be approved by the House of Commons.”

 

ITA-ASIL 2018 Recap, Part II: Diversity and Inclusion in International Arbitration Conference

By Rachael SmithInt_lComArb_Wordle_Word_Cloud__on_Navy__2016

This is Part II of a two-part series.

Next up at the conference was Defining the Issues, with panelist Professor Anna Spain Bradley, Melinda N. Hodgson, and Professor Anne Marie Whitesell, moderated by Professor Won Kidane.

Professor Anna Spain Bradley (Assistant Vice Provost for Faculty Development and Diversity, University of Colorado Law School, Boulder, Colorado) started with the question, what is the meaning of diversity?  To answer this question, she began with a series of questions.  First, she asked “why is diversity challenging?” Then she questioned why historically people of color are not part of the creation of the arbitration process; instead, men from mainly Anglo-European nations are representing the world.  There is also the issue of party selection, which means that arbitrators’ appointments are not permanent, so each panel creation is a new start.  She then moved on to “why diversity is important?” noting briefly that it is good for business as it cultivates innovation, adds legitimacy to the process, and reflects more broadly the norms throughout the world.  Next she asked, “what do arbitrators look like?”–a hard question to answer as it cannot be answered without talking about identity.  Identity is created in context; after all, who we are is not about discrete boxes, but rather an intersectionality of many categories.  In addition, identity is a legal definition in the United States.

Taking all of the above questions into account, she inquired about “how . . . these factors interact with decision making and implicit biases.”  Professor Bradley examines these issues through the lens of neuroscience.  Especially in the case if implicit bias, the link between fear response, as processed by the amygdala, and the emotions linked with decisions has been clearly documented.  The most familiar example is the Project Implicit, commonly known as the Harvard implicit bias test.  In this context, it is fair to say there are no humans, and no arbitrators, who are truly color or gender blind.  However, there are steps that one can take to relearn this cognitive process to allow for a better decision-making process.  The test, which is open and free on-line, can be used as a tool to enhance the decision-making process and to examine the role power plays in the decision-making process.

Next Professor Anne Marie Whitesell (Professor and Director of International Dispute Resolution Programs, Georgetown University Law Center, Washington, D.C.) addressed the role institutions play in international arbitration diversity.  She started with a brief history of the International Chamber of Commerce (ICC), noting key dates and developments – see the ICC’s website for details of the history.  As part of the historical context, the standard by which those who practiced in the field were judged by was if “he was of good sense and sound judgment.”  Currently the ICC does collect the percentage of women who are selected as arbitrators.  She noted that while institutions like the ICC can and do take the lead in ensuring diversity, they are limited by the requirements of the case – i.e. each case requires a certain set of skills and expertise.  However, when women are not selected, the impact on their future ability to gain opportunities, which will allow them to develop and diversify their skills in international arbitration, are still more adversely impacted; without opportunities to demonstrate their skills and expertise, they cannot gain the needed experience.  Lastly, she noted that while institutions, like the ICC, are an important part of the change, they are not the only actors and that other parties need to address this issue.

Mélinda N. Hodgson (Foley Hoag LLP, New York) reviewed the role of the practitioner.  At its most simple, they need their clients to act on their advice.  Clients will only do so if they trust the experience, qualifications, and substantive and subject expertise of their attorneys, along with their record of accomplishments and ultimately their efficiency in the arbitral process.  One way to address this is to broaden the access to objective data.  This would answer the clients’ need to find a diverse pool of practitioners– as it would address not just gender diversity but also cultural and regional diversity.  This would also provide the type of objective record of experience and the documentation of accomplishment of those practitioners who are unknown to a client.  This added knowledge would also make the pledge of taking an extra five minutes of creating a list of characteristics more powerful.

Professor Whitesell concluded the panel with a discussion of the power dynamics of the arbitral tribunal itself.  Generally, the presiding arbitrator holds a key role.  They are expected to be the most persuasive,  as well as to help create consensus.  They are expected to have experience, professional respectability, and to be held in high regard within the international arbitration community.  If they are not diverse, there is more of a likelihood of lack of diversity.  As previously mentioned, this is a reflection of unconscious biases of choosing those who look like oneself.  Having outlined the problem and various components that lead to a lack of diversity, the next step was how to address these issues.

The next panel, A Critical Look at Solutions, with panelist Lucy Greenwood, Professor Catherine A. Rogers, Professor Nassib G. Ziadé, was moderated by Caroline S. Richard and had many recommendations.  The panel started with Caroline S. Richard (Freshfields Bruckhaus Deringer US LLP), who outlined a list of instructions.  First, take the time to do the needed research and use the tools that are available – everything from the taking an extra five minutes to using institutional databases (e.g., ICC).  Second, take the proactive steps of challenging oneself instead of using the defense of what is already familiar; instead shift focus to who would be the best fit for the needs of the arbitration in terms of the nature of the case and for the needs of the clients.  Lastly, international arbitration has always been “global” as a practical matter, but the representation of regional powers and emerging markets improves particular expertise and adds legitimacy to the arbitration process.

Lucy Greenwood (GreenwoodArbitration, Houston, Texas) reemphasized the points above as the right thing to do in themselves, but also as part of better business practices.  She stated that international arbitration requires cooperation by all the parties.  One way to ensure cooperation and participation in the arbitration process is to reflect the diversity of the case and parties.  Diversity of the groups has the added benefit of challenging groupthink; with a diverse group, the calculations of risk and the mitigation of risk are improved as they challenge underlying assumptions that could be incorrect.

Greenwood also discussed how unconscious biases could be seen in the percentage of women – 16 percent is the diversity ceiling.  This is not to be confused with merit – the 16 percent does not reflect the relative pool of women, in either the number of women or the number of qualified women within that pool.  For an excellent and more detailed discussion of the lack of diversity with statistical information, see Getting a Better Balance on International Arbitration Tribunals (28 J. London Ct. Int’l. Arb. 653(2012) (full text freely available)) and the update to the article above, Is the Balance Getting Better? An Update on the Issue of Gender Diversity in International Arbitration (31Arb. Int’l.413 (2015)).

Greenwood also discussed how inclusion is another way to address lack of diversity, by welcoming newcomers to the field.  Through conferences, moot court competitions, young arbitration groups and publications (most importantly, newcomers as authors and co-authors), the field will reflect more of the pool of qualified women in this field.  This also creates more opportunity for new practitioners to demonstrate their competence in a complex field.

Richard, the moderator, then asked, what role institutions play in creating solutions.  Professor Nassib G. Ziadé (Chief Executive Officer, Bahrain Chamber for Dispute Resolution (BCDR-AAA), Manama, Kingdom of Bahrain), answered first and stated that in fact they do have a role, but it is important not to forget the role of parties and counsel.  He also pointed out that these steps would also address the issue of legitimacy, as more diversity of practitioners means fewer conflicts of interests and less requirements of the wearing of different hats at the same time.  Institutions are also involved in the development of the next generation through training and guidance, which can create diversity based on experience and a solid record of accomplishment.  He next discussed the use of codes of conduct to address the issue of parties reporting their own data.  Institutions can also improve the overall transparency process by making their appointment process more transparent.  He concluded by noting that while there is still a lot of work to be done, notably there is evidence that once an arbitrator from a diverse background is selected they are given a fair chance.

Professor Catherine A. Rogers (Pennsylvania State University – Dickinson School of Law and the School of International Affairs, Founder and Executive Director, Arbitrator Intelligence, State College) agreed with the need for more information.  She went on to discuss how academia and the overall education process can help.  She mentioned how U.S. law students are not encouraged to go abroad as part of their legal education, unlike many law students from other countries.  This means that U.S. law students do not have the advantage of gaining some familiarity with another legal system.  This lack of investment by academia in international arbitration is also reflected by the dearth of scholarships or even the utilization of internships to support and cultivate the next generation.

Professor Rogers next discussed how the use of data about an arbitrator can be problematic; for example, in the law firm context, the same list of names is recycled over and over again.  While using a pre-approved list seems efficient, an important evaluation process is bypassed.  It is important to evaluate the object of the case and consider the needed characteristics of the arbitrators to meet the needs of the case.  This issue can be corrected with better collection of information to address the issue of gender diversity, multilingual competency, and regional diversity.

Richard mentioned how using the Harvard biases test makes it easier for all to see objectively the problem of unconscious biases.  Once this issue is known and objectively verified, it is easier to take concrete steps.  These steps include internet training, but also the use of external groups such as Alliance for Equity to hold training sessions.  This could create better business practices, which tend to generate more business, which is better for all.

Professor Rogers ended the panel with two observations.  One, the meaning of diversity is rapidly evolving, and two, international arbitration is getting more complex and more nuanced.

Due to time limitations, Professor Susan D. Franck (Chair, ITA Academic Council, American University Washington College of Law, Washington, D.C.) remarks were brief but concise.  She stated that there is no one size fits all for solutions to creating more diversity.  Arbitration institutions, as well as clients (either nations or commercial parties), all need to determine how to best utilize the pledge.  Lastly, all in the field of international arbitration can be the change that will bring more diversity to the field.

For some more readings on this topic of diversity and international arbitration, see the Selected Papers and Articles from the conference.  For background and basic introduction on international arbitration, Redfern and Hunter on International Arbitration is an excellent resource.  A resource for more information about practitioners in the field of international arbitration is The Culture of International Arbitration and the Evolution of Contract Law, by Joshua Karton.  Lastly, for a quick oral history about both the book above, and the history of international arbitration, see interviews with Mr. Redfern and Mr. Hunter (freely available online).

ITA-ASIL 2018 Recap: Diversity and Inclusion in International Arbitration Conference

By Rachael Smith

The Diversity and Inclusion in International Arbitration half-day conference presented by the Institute for Transnational Arbitration (ITA) Academic Council, and the American Society of International Law (ASIL) took place on April 4, 2018.  This conference was the first of its kind to examine the legitimacy of international arbitration in the context of the lack of diversity of practitioners selected to participate in international arbitration proceedings.  Does the current selection of practitioners reflect the wide range of regional practices; and do they reflect the pool of practitioners?  If not, what are some practical and actionable steps those who participate can take, in this very specialized field, within the larger field of global commerce?

As noted by the introductory speakers, Abby Cohen Smutny (Chair, ITA Advisory Board, White & Case LLP, Washington, D.C. and Lucinda A. Low (President, ASIL, Steptoe & Johnson LLP, Washington, D.C.), that this conference was taking place was itself an important step, as it moves the discussion of this issue beyond anecdotal concerns.  The approach of this conference was to first have the keynote speaker outline the issues; then to review academic scholarly work on this topic in order to understand why and how the lack of diversity is a problem; and finally, but importantly, develop some practical solutions.

The first question of why diversity is important was addressed by the keynote speaker Lucy F. Reed (Professor and Director, Centre for International Law, National University of Singapore, Singapore).  The answer at its most simple is because the world of international arbitration is global in its application and the world is diverse.  The second question is whether there is diversity; and again, the answer simply put is no.  Alternatively, a more nuanced answer to the same question is not as much as there should be.  To understand the lack of diversity in the larger context, what is the equation that leads to this result of low diversity?

The equation in this case is: caution + habit + bias = low diversity.

“Caution,” in this context, stems from the nature of international arbitration cases.  International arbitration cases are generally of some magnitude in terms of the amounts in controversy potentially at stake, cannot be appealed, and are relatively easily and quickly enforceable.  Parties involved are reasonable in wanting to entrust the arbitral process to those with experience.  Part of the lack of experienced practitioners stems from the history of international arbitration.  Originally the field was not well developed or even seen as a real field due to the view that this field was both very risky and soft (i.e. the law was governed less by the application of law and more by industry practices and commercial considerations–coupled without any surety of success).  There were few who were practicing in this field.  Historically, the pool was small and generally was made up of white, Western men.  This is important, because it leads into the next element in the equation, which is “Habit”.

As matter of habit, one tends to select those they already know and who are a reflection of themselves.  Times have changed for the field of international arbitration.  Bilateral Investment Treaties (BITs) have become more common, and specialized tribunals are not so unheard of (e.g., the Iran-United States Claims Tribunal).  In addition, the number of women who have entered the legal field has changed, yet this fact is not reflected in the selection of arbitrators.  One step that has been taken to address lack of diversity is the Equal Representation in Arbitration (ERA) Pledge.  One of the elements of the ERA pledge is to take an extra five minutes when thinking of that initial list of potential arbitrators – as there are women and non-European practitioners with solid experience, but who may not be as well known and who could be added to the list of names.  Of course, just a name included in a list does not equal diversity.

Another step taken to address lack of diversity being taken by the International Chamber of Commerce (ICC) is to release of all the names of the arbitrators involved in a proceeding, with the identifying information about the case removed.  This is enough information to get an overview of the expertise of those arbitrators involved in the proceedings.  This has resulted in slightly better numbers of women when an institute chooses an arbitrator.  Nonetheless, when a party makes a choice of an arbitrator, women are still underrepresented.  However, the pledge, the five-minute rule, and the release of names are some steps that help remove the issue of habit that is a hindrance without a point.

The last element in the equation is “Bias”.  Biases can be both conscious and unconscious.  Biases stem from what is familiar, especially when it is unconscious, so there is a stronger likelihood of selecting those who are most like oneself.  In international arbitration proceedings, many in the position of making the key choices tend to be white Western men.  Avoiding these biases of selecting those most like oneself requires affirmative research about the pool of arbitrators and public information more readily available about them.

A final point concerns the challenges of the field, as a whole.  There can often be many qualified applicants for few positions.  Newcomers need to know that persistence, patience, and realistic expectations are key to opportunities in this field.  She concluded with the counter equation “Inclusion + Patience + Persistence = Better diversity.”

Next, Conference Commentator, Gonzalo Flores (Deputy Secretary-General, International Centre for Settlement of Investment Disputes (ICSID), Washington, D.C.), started with some history of the lack of women in international arbitration.  Initially there was the lack of women in the field of law, then the lack of discussion of gender issues, and then a lack of transparency of the number of women in international arbitration.  Today, the discussion has expanded to include a combination of issues such as the inclusion of women, newcomers, and non-Anglo/Europeans with solid experience in international arbitration.  One of the steps to address this issue is an example from the International Centre for Settlement of Investment Disputes (ICSID).  ICSID has created a database that allows one to search arbitrators, conciliators, and ad hoc committee members.  ICSID also publishes the statistics of caseloads for each year.  From these reports, it is now easier to track how much the situation is changing.

 

Come back tomorrow for Part II of our recap of the ITA-ASIL Diversity and Inclusion in International Arbitration Conference.