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.

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

Published today in the Scotsman – www.scotsman.com

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?

Troubled times in Mexico

200 miles east of Mexico City on the Gulf coast lies Veracruz, the country’s main port.  Each year, millions of tons of cargo pass through its harbours, contributing to an economy which is ranked fourteenth in the world just behind Australia.  The traffic through the port is vast: but equally vast, it seems, is drug trafficking.

According to the CIA’s world fact book (easily found at www.cia.gov), Mexico has the world’s second largest cultivation of the opium poppy, generating a potential annual yield of 50 tons of pure heroin.  The Mexican government estimates the value of this trade at anywhere up to 50 billion dollars per year; and the country’s internal cartels play out a seemingly endless and bitter struggle for their share.

On 1 July 2012 Mexicans will go to the ballot box, electing a new president to replace the outgoing President Felipe Calderon: but sadly, however, the election debates have so far been characterised by personal accusations of corruption among the candidates, rather than any clear vision for the country.  And a vision is badly needed, as amply demonstrated by the tortured bodies of three young journalists, pulled ten days ago (on International Press Freedom Day) from a canal in Veracruz.  Their crime: daring to report on the city’s drugs trade.  There have now been nine journalists killed in the Veracruz area over the past 18 months, prompting UNESCO’s director general Irena Bokova to call for the Mexican authorities to do everything in their power to bring those responsible to justice.

The figures in recent years for attacks on journalists all across Mexico, however, are even more disturbing.  It is estimated that 50 have been killed or have disappeared in the last 5 years alone, the highest figure anywhere in the world: but even more concerning, it is alleged that in many instances those responsible are the very agents who should be combating the drug trade, rather than turning a blind eye, or worse.

But there is some good news.  In March, President Calderon’s government, in a vote unanimously backed by the Mexican Senate, amended the constitution to make attacks against journalists a federal crime; and in the run up to the presidential election, there is much focus on the extent to which the candidates will pledge to track down Mexico’s most wanted drug baron Joaquin ‘Chapo’ Guzman, the man who escaped from a Mexican federal prison in a laundry cart eleven years ago, and who has remained in hiding ever since.  And broadly speaking, while Mexico is today alive with drug related problems, these problems have only been brought to the surface by President Calderon’s commitment five years ago to a long term war on narcotics: a war he seems unfortunately far from winning as his presidency draws to a close.

Overall, the enormous issue of trafficking from Central and indeed Latin America seems to generate more questions than answers in today’s world, and many would point to radical solutions: but for the time being Mexico’s own attempts to face the issue seem paralysed.  In the words of Viridiana Rios, a Mexican PhD student at Harvard’s Kennedy School of Government: “Mexico is silent and blind and our leaders do not seem to care.  Our justice system is broken, it has no teeth.”

More than ever, Mexico needs a president with the vision and determination to help solve this unfolding human tragedy.

India’s troubled justice system

On 5 May 1978 life looked wonderful for Susan Leigh Beer. She was just 17, but the Australian swimming champion was on the verge of a glittering international career, with the next step the World Championships in Germany.

Beer was holidaying in India with her parents and brother, relaxing in Delhi’s five-star Akbar Hotel. Just after 5pm, she decided to join her family in the hotel pool, and jumped into the shallow end – at which point her life changed forever.

As is stated in the decision of the Delhi High Court at paragraph 54 of 73: “ … it has been established on the part of the plaintiff that the cause of injury was the fact that the plaintiff jumped into the pool at the shallow end and that her feet slid forward on account of the bottom of the pool being slippery. This resulted in her head hitting the side of the pool which ultimately resulted in her becoming a quadriplegic.”

The smooth-glaze tiles, it was found, were covered in algae as a result of poor maintenance; and despite the best efforts of first Indian and then Australian medics, Beer was left permanently paralysed from the neck down.

A bit of good news (one might think, in the circumstances) is that Beer successfully sued and obtained decree for 50 million rupees (about £700,000), but only after a bitterly contested proof. That figure included an award for loss of future earnings, for pain and anguish, and for other familiar heads of damages. It was also inclusive of interest from the date of the accident. For those particularly interested, the decision can be found at http://www.indiankanoon.org and is apparently one of the highest awards for damages ever made in India – although it is perhaps less impressive by UK standards.

Now the bad news, which is that the first instance the High Court in Delhi delivered judgment, and granted decree, was on 3 March 2011 – just shy of 33 years after the accident happened and 29 years after the action was raised in 1982.

Mercifully, the defending party does not appear to have taken up its right of appeal to the Supreme Court of India – in which case one wonders if Beer would ever have seen a single rupee. Shocked? Don’t be, because the truth is that Susan Beer’s case is unexceptional in India’s beleaguered justice system.

Judges are severely overworked, and litigants are reported to delay proceedings quite easily by failing to appear, forcing hearings to be postponed. The country has the unenviable claim to the greatest backlog of unresolved legal actions in the world, recently estimated by one High Court judge to be in excess of 30 million cases. Just last month, 11 people were killed and 61 injured when a bomb exploded outside Delhi High Court in a cowardly attack on the criminal justice system.

And yet this is the world’s largest democracy, a favoured daughter of the common law and home to a booming economy which has reported annual growth of 5 per cent, even in these challenging times. What’s more, over the next ten years India is looking to invest £1 trillion in infrastructure; and that is a prize which, for many Scots firms, will be well worth the taking part.

Two things, then, may be worth bearing in mind: firstly, a client moving to, investing or working in India might be well advised to think ahead. It is perhaps simply stating the obvious to say that India is no place to litigate at the moment. Secondly, the new and internationally acclaimed Arbitration (Scotland) Act 2010 offers a robust alternative method of resolving commercial disputes. It is already common knowledge that both Indian and foreign companies operating in India are happily resorting to binding arbitration agreements, in an effort to deliver fast and effective justice at lower cost. An agreement to arbitrate in Scotland could be to everyone’s advantage, and might just help give India’s troubled system some vital breathing space.