International Bar Association, Dublin 2012

Published today in The Scotsman

There are bound to be a few headaches this morning in Dublin after the International Bar Association’s (IBA) opening ceremony and welcome party last night.

The party, in the city’s venerable Royal Dublin Society building, marked the beginning of the week-long annual conference attended by more than 4,000 lawyers from all over the world. Host cities in recent years have included the likes of Vancouver, Buenos Aires, Singapore and Chicago.

The IBA was founded in New York in 1947 and its early members devoted themselves to the principles and aims of the United Nations in order to make a real contribution to world peace and neighbourliness. They aspired to do this, for example, by seeking to improve the administration of justice under the law. Today, the IBA is a vast international organisation with a truly worldwide membership. The conference’s slick, 178-page doorstopper of a handbook lists hundreds of speakers taking part in dozens of events.

The keynote speaker for this year’s conference is Nobel Prize-winning economist Professor Joseph Stiglitz: after all, the profession worldwide has rarely weathered tougher financial storms. Other showcase events include Michael Mansfield QC and Martin McGuinness on the topic “peace after terror: rules or reconciliation?” and a range of experts debating issues such as “the euro crisis: thinking the unthinkable, the public perception of lawyers and lawyers against poverty”.

The main events aside, most of the conference is taken up with working sessions in areas as diverse as insuring liabilities in cyberspace, family disputes involving trusts, “construction projects from hell” and the fabulously titled “is water law a sexy career for young lawyers?” Rest assured, no matter how obscure the niche of expertise there is pretty much guaranteed to be something for everyone.

Lawyers can be a cynical bunch, however, and when work is demanding and times tough, glittering affairs such as this one can seem far removed from our earthy realities.

But leave aside the everyday demands of another Monday morning for a moment, and ask yourself this question: can we really afford not to participate in conferences such as this? I’m afraid to say that for a country with such a remarkable legal tradition, it is astonishing that Scotland and the Scots are so markedly absent from this international legal line-up taking place on our doorstep.

Minister for Community Safety and Legal Affairs Roseanna Cunningham, Advocate General for Scotland Jim Wallace and Brandon Malone from the Arbitration Centre are speaking tonight at a drinks and networking event. Tomorrow, the Law Society of Scotland is holding a discussion panel with speakers Stephen Mayson and Fraser McMillan from the Pinsent Masons’ Glasgow office on the changing face of legal services provision.

Elsewhere in the programme I can see three other brave souls (take a bow Philip Rodney at Burness, Shona Frame at MacRoberts and Grant Campbell at Brodies) – but that’s it from Scotland.

It’s in the very times when things are tough that reaching out becomes more important than ever. After all, if Scotland and Scots don’t take part on the international stage then how will we know how we’re shaping up in the world, and how will the world know about Scotland? If lawyers from Mexico, Egypt, China and Korea (to name but a few) are willing to make the effort to come so far, then perhaps we need to rethink our perspectives. Raising its profile on the international stage can only boost Scotland’s legal services industry. At the very least we might set a challenge and aim to have ten speakers at the next IBA conference, and if you’re under 35 there’s the chance to compete for an IBA scholarship and obtain a free conference place by completing an essay on one of a range of legal topics.

Next year the IBA conference will be in Boston, but sooner 
or later thoughts will return 
to a European venue. The last time the IBA held its conference in Dublin was in 1968. In those days it was held every second year. The only time it was held in Scotland? Edinburgh in 1962. If the Olympics 2012 surely taught us anything, it’s that great success can only come from great ambition. After all, why not?

Somalia’s Pirate Kings

 Published today in The Scotsman

Somalia is a part of the world which has become synonymous with piracy, particularly after the ordeal in 2010 of British couple Paul and Rachel Chandler.  It remains a huge problem in the region (basically the Arabian Sea and Indian Ocean) with EU data indicating seven large ships and 176 hostages are currently in the hands of pirates. There were more than 150 attacks on ships in 2011, a slight rise on 2010. It’s certainly lucrative, netting Somali pirates a staggering $146 million in ransom payments in 2011 alone.

A crackdown on an unprecedented scale (at least since the days of Pompey the Great) has followed, involving the US, China, Russia, India, Japan, the EU and Nato. Slowly, they seem to be gaining the upper hand.

At the same time as patrolling the seas, however, a number of authorities have been engaged in the prosecution of those pirates who have been captured. The US has been in the vanguard, with a Virginia federal court in April convicting Mohammad Saaili Shibin on charges of piracy. He was found guilty of being a “hostage negotiator” in the hijacking last year of the US yacht SV Quest, together with a German merchant ship, and sentenced this month to 12 life sentences. The four civilians on board the Quest were murdered, while those on the German ship were tortured in order to extract a greater ransom.

Those who did the boarding pled guilty and received life sentences, while those specifically involved in the murders will receive the death penalty.

The multilingual Shibin’s role as a negotiator, however, raises a unique point because he remained firmly on Somali soil throughout. His role, it seems, was to research the backgrounds of hostages with a view to calculating the appropriate ransom figure. Could he, therefore, be guilty of piracy? Is there such a thing as a land pirate?

Blowing the dust from the USA’s 200-year-old piracy laws, Shibin’s defence team maintain that only those who board and rob a ship on the high seas can be guilty of that crime. However, District Judge Robert Doumar, who heard the argument, opined that while an actual presence on the high seas was originally envisaged, the law had to evolve to embrace piracy in its modern form. The defence argument was therefore rejected.

Judge Doumar’s opinion appears to be strengthened by the fact that US piracy law otherwise refers to piracy “as defined by the law of nations”, and the main point of reference in international law is the UN Convention on the Law of the Sea which, at article 101, includes “facilitating” acts of piracy within the crime’s definition. While Judge Doumar’s opinion therefore appears correct, there is at least one other first-instance decision (of a Judge Huvelle) which reaches a different view. It accordingly looks likely that the US Supreme Court will in due course have to settle once and for all whether a pirate needs to take to sea.

As defence attorney James Broccoletti said: “He [Shibin] has never been on the high seas and so I think the Supreme Court’s going to have to decide in the modern era what piracy is, what the law of piracy is and what one has to do to be guilty of it.”

Of course, prosecuting attorney Neil MacBride was somewhat more blunt in his views post-sentence: “This case explodes the myth, if still it exists, that pirates are some kind of romantic, swashbuckling characters from Hollywood summer movies. This case showed that pirates are brutal, greedy, reckless, desperate criminals who will kidnap, torture and kill hostages in pursuit of their financial greed.”

Even Gilbert and Sullivan may have struggled to find the comic side of that.

Is this party cool, legally speaking?

Published today in The Scotsman

Everyone seems to have a smart phone or tablet these days and, not unconnected, just about every major legal jurisdiction now seems to have intellectual property disputes arising from their sale and development.

In a dizzying whirl of litigation over the last twelve months, from Germany and Japan to the United States, the Netherlands and England, the major players in the market (including Apple, Samsung, HTC and Motorola) have locked horns in attempts to obtain injunctions against the sale and distribution of rival products.  Success has been mixed.

In some instances, one company has been successful in one jurisdiction, only to obtain an entirely different or at least a conflicting outcome in another. While in essence the disputes have been about the designs and technologies used in mobile devices, the reality is that it is a battle for control or even a foothold in a multi-billion dollar worldwide market.

There are no definitive answers it seems, or at least there are a number of different ways of looking at the laws of patent infringement.

Some argue that the software designs and enhancements built in to each succeeding generation of devices have inevitably built upon those of the past; while others claim that certain features of ‘searchability’ and ‘functionality’ in devices are unique, and represent a recognisable development attracting their own intellectual property rights and legal protection.  Some issues relate purely to the appearance of rival devices but overall a very real concern in the industry is that if each company becomes entrenched in successfully protecting its own patents and designs, future breakthroughs and developments will become all but impossible in the way all the major players have benefited from in the past.

This month’s decision of Judge Birss QC, in the English High Court case of Samsung Electronics (UK) Ltd v Apple Inc. [2012] EWHC 1882 Pat, is a good example.  Samsung raised an action seeking a declaration that three of its Galaxy tablet models did not infringe a European Community Registered Design registered by and belonging to Apple.  Following an exhaustive consideration of many of the design features of both Apple and Samsung products, Judge Birss noted as follows:

“The extreme simplicity of the Apple design is striking. Overall it has undecorated flat surfaces with a plate of glass on the front all the way out to a very thin rim and a blank back. There is a crisp edge around the rim and a combination of curves, both at the corners and the sides. The design looks like an object the informed user would want to pick up and hold. It is an understated, smooth and simple product. It is a cool design.”

Then, turning to the Samsung products he opined:

“The informed user’s overall impression of each of the Samsung Galaxy Tablets is the following. From the front they belong to the family which includes the Apple design; but the Samsung products are very thin, almost insubstantial members of that family with unusual details on the back. They do not have the same understated and extreme simplicity which is possessed by the Apple design. They are not as cool. The overall impression produced is different.”

And so by way of this rather back-handed compliment and affirmation of judicial good taste, Judge Birss concluded that Samsung had not infringed Apple’s registered design.

The judge’s remarks have been a gift to satirists, or at least who those who hang around the Royal Courts of Justice. “Surely, that’s the last thing you want,” they chortled on BBC Radio’s Now Show, “judges basing their verdict on how cool they think the parties are. Older people just aren’t behaving the way we expect.” The thought led seamlessly on to the 50th anniversary of the Rolling Stones first gig.  If ‘gig’ is still cool.

The makers of the Galaxy products welcomed the decision, stating that it ‘affirmed our position that Galaxy Tab products do not infringe Apple’s registered design right.  As the ruling proves, the origins of Apple’s registered design features can be found in numerous examples of prior art.” And “Should Apple continue to make excessive claims in other countries based on such generic designs, innovation in the industry could be harmed and consumer choice unduly limited.”

Apple of course sees the position very differently, and the litigations pending in jurisdictions across the globe will continue to play out, with one highly significant showdown, again with Samsung, moving slowly toward a U.S. Federal Court hearing.  Apple has won the vital preliminary skirmish in securing an injunction against the sale of Galaxy products, a decision which Samsung is appealing in advance of the full hearing.  The stakes for both companies could not be higher.

Egypt’s supreme court must become jewel of the Nile’s institutions

Published today in the Scotsman –

In a country not known for its robust institutions, Egypt’s Supreme Constitutional Court served as a powerful symbol of independence for years in the 1970s and 1980s.

Egypt’s leaders – president Mubarak, and Sadat before him – initially allowed the court its place for political purposes. But the court seized that role and in some areas duly held the government to account. Sadly, the great court is today not the power it once was, following a plan to weaken it led by Mubarak from the 1990s onwards.

Perhaps the clearest measure of this was when the present chief justice, Farouk Sultan, was appointed in 2009, causing many eyebrows to be raised.

It was not just that Judge Sultan was appointed from a first-instance court below both the Constitutional Court and the appellate Court of Cassation, it was also the fact that his experience was in military and security courts, and the curiously titled “courts of ethics”.

All in all, the feeling grew that the Constitutional Court’s glory days were behind it, to the point where today it is openly known that a number of its judges are advisers to the Supreme Council of the Armed Forces (SCAF), the junta currently running the country since Mubarak was deposed and, in short order, arrested, tried and convicted.

The announcement yesterday of the outcome of the presidential election and the imminent investiture of Mohamed Morsi as head of state could put the Constitutional Court into the front line of civic life again.

Chief Justice Sultan is also head of the Presidential Elections Committee, at the centre of the delay in declaring the results. And with a mandate from barely a quarter of the electorate, President Morsi is likely to face many legal challenges as he tries to change the face of Egypt.

Everything has been happening in Egypt at the same time: the first free elections in the country’s history; a close-run presidential campaign albeit with a modest turnout; attempts to draft a new constitution; the declaration last week by the Supreme Constitutional Court that last November’s parliamentary elections are null and void and will have to be re-held at some point; the subsequent dissolution of parliament by SCAF; the slow demise of ex-president Mubarak; and now the presidential election results.

Perhaps this is not the easiest time to be a professor of  constitutional law at Cairo  University… probably just as well to dump the last few years’ lecture materials in the recycling bin.

In the midst of all the chaos, however, it is easy to forget how far Egypt has come in less than 18 months and that the country has almost arrived at the point where SCAF needs to honour its promise to hand over control of the government to the newly elected president – an event scheduled for this weekend.

In the parliamentary elections earlier this year, Egyptians voted overwhelmingly in favour of pro-Islamic candidates. Now they have voted for the Muslim Brotherhood candidate, Morsi, over  Mubarak’s ex-prime minister, Ahmed Shafiq.

It should come as no surprise that SCAF is perceived as supporting the more secularly inclined population as opposed to the Muslim Brotherhood – the military and the mosque have been two competing factions in Egypt for decades – with the third “m”, the mob, somewhere in the middle. Of course, the secular population is not a single bloc. It includes those who hanker after the Mubarak certainties as well as the enthusiasts for liberal reform.

When it comes to it, will SCAF freely hand over the country to its rival, Morsi? Somehow that’s difficult to imagine happening.

Shafiq, on the other hand, is cut very much from SCAF cloth, a military man, like Mubarak before him, with a liberal eye to the west.

So far, SCAF appears to be honouring its promise with regard to the transition to democracy and respecting the choice of  the electorate. But what, if anything, can hold SCAF to account, quell the election bickering, ease the passage to democracy and guard the country’s liberal and secular minorities?

What Egypt needs now, more than ever, is its Supreme Constitutional Court restored to operational independence and polished until it sparkles like a diamond amid the noise and confusion of so much change, so many competing voices and with an active legal profession which is confident that arguing a challenging brief will not risk personal safety.

Chief Justice Sultan, aged 70, will stand down on 1 July, probably to his great relief, and is likely to be replaced by Judge Maher El-Beheiry.

However, unless his court can once more stand apart from the junta, then who will guard the guardians of Egypt’s delicate Arab Spring?

Egypt at the brink of a new dawn

Published today in the Caledonian Mercury –


After months of uncertainty, Egypt stands on the brink of a new dawn: but judging by recent developments, quite what the future will hold for the turbulent nation remains far from clear.

Firstly, there was President Hosni Mubarak’s dramatic resignation in February last year, bringing to an end his thirty years as the country’s leader (which followed the assassination of President Sadat in 1981).  There then followed in August his conviction by an ordinary Egyptian criminal court for failing to prevent the killing of protesters during the popular uprising which brought down his regime.  He was immediately sentenced to life imprisonment, and continues to serve that sentence in an Egyptian prison: however as this goes to press the 84 year old has been transferred to a military hospital in a critical condition.

After his resignation, the Supreme Council of the Armed Forces (‘SCAF’) became the de facto government; and in a statement issued at that time declared that it would both facilitate a transition to democracy and thereafter respect the will of the people as spoken through free and open elections.  That is something that has never happened since the founding of the Arab Republic of Egypt in 1953.

In recent months Egypt has quickly had to get to grips with elections for both the presidency and also the parliament – which was dissolved at the same time as President Mubarak’s resignation.  There have been many arguments about the right of those associated with Mubarak’s regime to stand in the elections and the country has become more openly divided on religious lines, with violent clashes involving Muslim and Coptic Christian communities.

Between November 2011 and January 2012 elections were held for 498 seats in the parliament’s lower house, the People’s Assembly (an additional 10 seats were filled by SCAF appointed candidates).  The result gave the Democratic Alliance, which is dominated by the Freedom & Justice Party (founded by the Muslim Brotherhood of Egypt) 235 seats.  The second largest party, the Islamist Bloc, gained 121 seats, with a spectrum of liberal parties thereafter gaining less than 100.

Elections to the upper house, the Shura Council, took place in January and February 2012 and the Democratic Alliance and Islamist Bloc took the lion’s share with 150 of the 180 seats, with liberals again making up the remainder.

With the parliamentary elections complete, the focus then turned to the presidential campaign and ultimately last week’s run off between President Mubarak’s ex-Prime Minister Ahmed Shafik (who has a military background similar to ex-Presidents Mubarak, Sadat and even Nasser before him) and Mohamed Morsi, chairman of the Freedom & Justice Party.  Again, as this goes to press, the result of the election is too close to call, with both candidates claiming victory [Mohamed Morsi has, amid dramatic scenes, now been proclaimed President].  Whoever wins, SCAF has vowed to hand control to the newly elected president on 30 June, but whether this will happen is far from clear; and veteran Middle East analyst Charles Holmes has written that it doesn’t really matter who the next president of Egypt is: that both are ghosts of the past, embedded in a clash between ‘military and mosque’.

The most significant development of all, however, was Egypt’s Supreme Constitutional Court decision of 14 June that the elections to the People’s Assembly were unlawful, a step which led SCAF to dissolve Parliament.  This has led to an outcry, mainly by the Muslim Brotherhood, which has the greatest to lose from fresh elections, and accusations that SCAF is engineering a coup d’Etat.  On the other hand, SCAF claims simply to be upholding its duty to govern in accordance with the rule of law.

In short, Egypt’s future remains as unpredictable as at any time since the first shoots of the Arab Spring; and the real issue, its foundering economy, remains adrift in the political storm.

Stephen O’Rourke, June 2012

Chinese law – will they, won’t they?

Here in the West there is an assumption that things change very slowly in China.  The example often given is the exchange between US President Nixon and Chinese Premier Zhou Enlai during Nixon’s historic 1972 visit.  The topic of discussion was the French Revolution; and when drawn upon his views, Premier Zhou famously replied “it’s too early to say.”

There are two things which the story highlights.  Firstly, according to recent comments by President Nixon’s now retired translator Charles Freeman, Premier Zhou was actually referring to unrest in late sixties’ Paris.  The story accordingly demonstrates the power of myth: we prefer the idea that Zhou was commenting on the eighteenth century revolution because it fits with our preconceptions of China always making a long, considered assessment of world affairs – but is that a fair reflection of modern China?

Secondly, the story hints at scepticism on the part of China to embrace democracy and the building block principles of separate legislative, executive and judicial functions: but again, is this an entirely fair picture?

China’s legal system is playing catch-up with the country’s wider socio-economic changes, but there are signs nonetheless that the Communist Party dominated National People’s Congress – the world’s largest parliament – is gradually extending power to the intricate Chinese judicial system under the umbrella of the Supreme Court.

Last month both the President of the Supreme Court, Wang Shenjun and the State Prosecutor, Cao Jianming made their annual reports to Parliament.  The Supreme Court President noted the growth of intellectual property litigation, while the Prosecutor affirmed a continuing policy to tackle corruption, citing the examples of seven ministerial level officials and numerous civil servants being investigated last year.  Both senior officials also addressed international and domestic concerns about the criminal justice system, concerns which have caused Parliament to pass laws clarifying the position of detainees, a notoriously dark issue.

The plight of one of China’s most influential artists Ai Weiwei is a case in point.  The 54 year old is an outspoken critic of the State who, in April 2011, was detained moments before boarding a flight to Hong Kong and held in secrecy for 81 days.  In a separate incident, prominent human rights lawyer Gao Zhisheng simply disappeared for 20 months before his family were recently informed of his detention in a remote prison.  Only last week The China Post confirmed that his family had finally been allowed to visit him for half an hour.

While the law passed by Parliament has affirmed the right of the State to detain suspects without notifying their families, it is perhaps something of a small victory in itself that the legislature has felt the need to respond to both domestic and international pressure and regulate the practice.

Meanwhile in the commercial sector, from a standing start in Beijing twenty years ago, Decheng (now a top ten Chinese law firm) recently celebrated the attainment of 2,600 lawyers and staff in their offices across China and worldwide.  Decheng are far from alone: King & Wood, Grendall, Jun He and Guanghe are other Chinese firms which have likewise taken a firm hold in China’s rapidly expanding market economy.  At the same time international firms have been quick to open offices, with recent figures showing Baker & McKenzie now has 269 lawyers in the country, DLA Piper 140 and Lovells 111.  The domestic legal services industry is growing, and China has many thousands of university educated young people who return from the West each year and contribute to the knowledge economy.

All in all there are signs that the role of law, if not exactly the rule of law, is increasing: but perhaps, to paraphrase Premier Zhou, it’s simply too early to say.

Syria in crisis

It was hard not to be deeply moved by the recent hospital bedside evidence of Sunday Times photographer Paul Conroy and the massacres he has witnessed in the Syrian city of Homs.  Mr Conroy, a veteran correspondent, describes the situation in Syria as a crime on a scale he has never seen before, involving the indiscriminate slaughter of women, children and old men by government forces loyal to President Bashar al-Assad.  He compares Syria with the Chechen capital Grozny, with Rwanda, with France during the First World War; and as he recovers from his blast injuries, breathing with the aid of an oxygen feed, he says ‘The time for talking is long gone, these people are dying as we speak’, but that ‘once again the world sits by and watches.  There should be an answer in this age.’

Weekend reports in the Canadian media, quoting figures provided by the Local Co-ordination Committees of Syria (an opposition activist network), estimate the death toll at close to 10,000 civilians, while the official United Nations figures are already in excess of 8,000.

But what if anything can the law, international or otherwise, do about this unfolding genocide?  And if the answer to this question is nothing, it is at least worth reflecting upon why that is so.

In Geneva on 29 February, the United Nations Human Rights Council passed a resolution calling on the Syrian authorities to put an end to human rights violations and allow humanitarian aid to be delivered into the country by the UN and other organisations.  37 countries backed the resolution while China, Cuba and Russia voted against it.  Ecuador, India and the Philippines abstained.   The Council also stressed the need to end impunity and hold accountable those responsible for human rights abuses.

The UN Council resolution followed a mid-February Cairo meeting of the 22 member Arab League, which called for international efforts to end the conflict.  At that meeting the League disbanded its own monitoring mission in the country, stating that it would ask the UN Security Council to form a joint UN-Arab peacekeeping force to oversee the implementation of a ceasefire.  In an impassioned address to the League, the Saudi foreign minister stated: “How long will we stay as onlookers to what is happening to the brotherly Syrian people, and how much longer will we grant the Syrian regime one period after another so it can commit more massacres against its people?”

Events in Syria follow the Arab Spring which has toppled a number of regimes; and for over a year now the struggle between the government forces of President al-Assad (a Ba’athist, in common with Saddam Hussein) and the popular uprising against his regime has played out in the world’s media.  In November the UN Office of the High Commissioner for Human Rights concluded that crimes against humanity may have been ongoing in the country since last March.  The alleged crimes included specific instances of torture and killing within a military hospital in Homs.

In May, President Obama made an Executive Order freezing all assets of President Assad under US jurisdiction.  Canada quickly followed suit, and days later the Council of the European Union also resolved to impose travel bans and an assets freeze on President Assad and nine other Syrian officials.  Both Turkey and the Arab League imposed sanctions in November; and in recent days the EU Council of Ministers has met again over the issue – however it has rejected any possibility of military intervention out of hand.  “We must be patient,” said Luxembourg’s highly regarded Minister for Foreign Affairs Jean Asselborn, “We will unfortunately have to accept to see enormously more victims, but military intervention would be worse.  It wouldn’t be thousands, but tens of thousands of dead.”

The highest level of international response to the situation in Syria is of course through the UN Security Council, whose five permanent members (The US, France, Russia, China and the UK) enjoy a right of veto against any concerted UN action.  But last October a Council resolution – which in effect proposed sanctions against Syria – was vetoed by Russia and China; and there is no prospect that either of those countries will change their position.  While sanctions have, therefore, been thwarted at the UN level, they appear to be already well implemented by the US, the EU and other countries and international bodies.  One thing is clear, however: lawful military intervention would require a resolution of the UN Security Council to that effect (such as was obtained in the case of Libya, with Russia and China abstaining).  As things stand, however, and bearing in mind the recent views of EU Ministers, such a resolution is highly unlikely.

Meanwhile, President’s Assad’s forces have begun shelling the southern city of Deraa; Turkey reports thousands of Syrian refugees pouring across its border; the United Arab Emirates, Bahrain, Saudi Arabia, Omar, Qatar and Kuwait have all joined in closing their Syrian embassies and denouncing the Syrian government; and the United Nations has this weekend announced a humanitarian mission into the country, which hopes to work in tandem with the Syrian government in obtaining ‘unhindered access to identify urgent needs and provide emergency care and basic supplies.’  “There is no time to waste,” says UN humanitarian chief Valerie Amos.

Through it all President Assad maintains that his troops are fighting armed gangs which are seeking to destabilise Syria; and he has been emboldened in that course of action by the continued support of Russia.  Much therefore rests on the position and enormous influence of the newly elected President Putin.

Brazil’s heart of darkness

THE River Xingu in Brazil, with a total length of 1,230 miles, is ten times longer than the Tay.

It is one of more than a dozen tributaries forming the Amazon Basin which, one after another, pour out their waters into that single, great river: each one winding its way through a combined area of more than three million square miles of dense, tropical rain forest. To put it in context, that’s just a fraction less than the entire land mass of the United States.

The Xingu joins the Amazon from the south, close to its Atlantic delta, and any picture of it tends to reflect the classic Amazonian image we all have: muddy waters snaking through forests so vast they are difficult to comprehend, while the indigenous people wave from their waterside clearings, or paddle close to the banks.

Of course, that image is only one aspect of modern Brazil. Another is Brazil’s ‘economic miracle’: the country clawed itself back from a financial abyss to the point, last month, where it edged ahead of the UK to become the world’s sixth-largest economy. Like all growing economies (and indeed, like many mature ones) Brazil needs energy.

Part of the solution, decided upon in 2010 by the Brazilian government, is a green light for the construction of what has been named the Belo Monte hydroelectric dam on the lower reaches of the Xingu. When completed, it will rank as the third-largest on Earth behind China’s Three Gorges dam (completed in 2006) and the Itaipu complex on the Brazil-Paraguay border (completed in 1991). It will see a vast stretch of the Xingu in front of the proposed dam dry up permanently, while a 200 square mile area behind it will be submerged. Following a tendering process, the Brazilian government last June awarded a licence to the public/private Norte Energia consortium to build and operate the dam.

The government has said the project will provide a source of clean, renewable energy, while indigenous groups and high-profile environmentalists (apparently including Sting, film director James Cameron and actress Sigourney Weaver) claim the dam will devastate wildlife, destroy the livelihoods of 40,000 people and deal a further hammer blow to the delicate Amazonian ecosystem.

Both prior to and after the June licence grant, those groups have backed legal action to stop the project going ahead and a confusing game of legal cat and mouse has ensued. Despite legitimate claims of lack of consultation among the people to be affected, and key failures brought to light in the environmental impact assessments, Brazil’s higher courts have given their blessing and in November confirmed the project can proceed.

While this is clearly a project which the government sees as vital to the national interest, the planning and implementation aspects appear fraught and rather crude when measured against European standards of planning law. For example, nothing akin to a public inquiry preceded the government’s decision, all the more surprising, perhaps, when reflecting that this is, after all, the Amazon rainforest which is being discussed. At least one federal judge last year pointed out that the Brazilian government, in its handling of the project, was in breach of its treaty obligations under the International Labour Organisation’s Convention 169 – a treaty that requires free, prior and informed consent among indigenous peoples regarding projects which affect their territories and livelihoods.

But can we be too judgmental of another sovereign state when it comes to the handing of what are, after all, its own resources?  I suppose it might be argued that detailed and exhaustive planning laws are the preserve of already overdeveloped countries with limited space; and that countries such as Brazil, having vast areas of unspoilt land, need not trouble themselves with the minutiae. But, standing back for a moment and considering how precious the wildernesses of the world are today, isn’t that more than a little ironic?

Russia’s modern Klondike

Ask if anyone has heard of the city of Tyumen and a Siberian silence descends. About the size of Edinburgh – and equally historic – it is more than 1,000 miles east of Moscow, in the country’s vast hinterland beyond the Urals.

It is the capital of Russia’s richest province (or “oblast”), stretching north from Kazakhstan to the Arctic, and, despite a  province-wide population density one-fifth that of Norway, this is the Klondike of the modern age, the land of black gold, with production levels already on a par with Texas – and rising.

Russia’s own super-rich have, of course, not been slow in opening up the region, but the biggest prospector from the outside until recently has been BP, which in 2003 set up TNK-BP Holding, a joint-venture company which now ranks among the ten largest oil companies in the world. In August, BP lost out to Exxon Mobil in a mammoth bid to join forces with Russian oil giant Rosneft. Crucially, BP’s direct bid did not involve TNK-BP, and a small but powerful group of Russian shareholders in the joint venture decided to sue. They raised two actions: one against BP, claiming $13 billion in damages for failing to include TNK-BP in the Rosneft bid, and the other against BP-nominated directors on the joint-venture board, claiming $2.8bn.

The actions were brought in Tyumen’s state commercial court (somewhat confusingly referred to as the Arbitration Court). The actions share some similarities with the form of a petition for unfair prejudice allowed in Scotland under section 994 of the Companies Act 2006, and the remedies available under section 996. In terms of section 996, UK courts, including the Court of Session, have a very wide discretion, including whether to allow the petition to advance at all – see, for example, the decision in the Chancery Division case of F&C Alternative Investments (Holdings) Ltd v Barthelemy & another [2011] EWHC 1731, paragraphs 1094-1107.

The Tyumen court has its own threshold rules, and applied them to dismiss the claims due to a failure to gather a sufficient percentage of the shareholding in support. BP, which has had its fair share of litigation difficulties, hailed the judgment as “a positive contribution to the investment climate in Russia”.

On the other hand, lawyers for the minority shareholders vowed to appeal, stating they had been given less than two hours to present their billion-dollar cases. “These court proceedings showed Russia still has a long way to go to meet international standards in corporate law”, said their lawyer, Dmitriy Chepurenko.

The decision firstly appears to demonstrate a willingness on the part of the Russian court to act swiftly and robustly in dealing with a commercial claim, in an area of law well known for its potential to result in lengthy, complicated and often futile claims (F&C being a case in point). Secondly, the Tyumen court has been a successful forum over the past ten years for the minority shareholders in unrelated actions, and so the decision, quite properly, appears to be without fear or favour.

Thirdly, the case perhaps gives a glimpse into the vast and increasingly sophisticated legal system of the modern Russian Federation which includes federal and regional courts, with constitutional, civil and commercial jurisdictions within its enormous reach (for the briefest of overviews, see the independent EU-Russia Centre’s website at

If, to paraphrase Karl Marx, the legal system is simply a part of the capitalist superstructure, what if anything does that tell us about modern Russia?