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.

An ever closer legal union?

An ever closer legal union?  Published today at The Guardian

Something interesting is happening to the legal services market in Scotland.

Firstly, like everywhere else, Scotland is feeling the effects of a double dip recession. This has shrunk the legal sector, dried up a good deal of commercial and domestic property work and left smaller law firms concentrating their billable time on wills, trusts and executries.

For the medium to large firms in the Scottish market, however, the seismic event of the past few years has been the falling away of work from the two most significant clients in the country: The Bank of Scotland and The Royal Bank of Scotland.

To give an idea of just how central this work is, I recall a discussion some years ago with a senior partner in one of Edinburgh’s grandest firms. He pointed out that in 1800 their two largest clients were the banks and that this was still the case over two hundred years later. Indeed, the decline of bank business in Edinburgh – which all the major firms share in — has been compared by some to Glasgow’s loss of heavy industry in the 1950s, or the disturbance of an ecosystem in which surveyors, lawyers, accountants and even sandwich shops have traditionally lived and thrived. Of course both banks are still very much present in the Scottish market, it’s just that the transaction work which they consistently provided may not return on anything like the scale it once was.

Despite these changes, however, there is a great deal for lawyers to be optimistic about: the market has dynamism and Edinburgh is growing again as an eminent financial centre with secure funds under management; it’s attracting headquarters for banks such as Virgin Money, Tesco and Green Investment; the city has over 700 established financial services firms; it’s building a significant reputation for technology start-ups with IPO ambitions; there’s oil and gas work and development; and it’s still one of the top places in the world to live, work and study.

But the thing which is most interesting in the industry at the moment is the rapid trend of mergers between Scots and English firms. The most prominent link up earlier this year was between McGrigors, one of Scotland’s lead firms, and Pinsent Masons. Others have followed: DWF and Biggart Baillie, Shoosmiths and Archibald, Campbell & Harley, DAC Beachcroft and Andersons. A number of other firms have featured in the rumour mill. The trend is a very significant one for a jurisdiction which has always been fiery about its independence: equally, however, its very independence from the rest of the UK legal sector has perhaps led Scots firms and their lawyers to underplay their hand on a wider stage.

Why are these mergers happening, and what are the incentives on both sides?

From the Scottish perspective, a link up with a strong London or regional player gives the strength and support of a larger firm in these tough economic times — for even the biggest in Scotland are small when compared to the likes of the magic circle firms. Many clients will have interests across the border, and it makes sense in those circumstances for the same firm to be able to offer a joined up service. For lawyers in Scottish firms, a link up with a global practice brings the potential to work and travel far beyond the jurisdiction’s traditional boundaries.

From the opposite perspective, merger with a Scots firm is likely to bring in a high quality team of lawyers with an established share in some very lucrative markets including, for example, oil and gas work. As an added bonus, for those working on high value London deals there will suddenly be the availability of a skilled team of commercial lawyers working out of Edinburgh, Glasgow or Aberdeen, who would then be in a position to share the workload at a competitive rate.

Overall, the trend of cross border mergers meets a number of needs on both sides, as well as being a timely reminder that despite obvious differences (such as land law) there is much which is shared across the two jurisdictions. After all, the Act of Union in 1707 gave Scots the commercial freedom to reap the benefits of England’s trade networks, whose doors had until then been closed to them; and it gave England the talent, drive and imagination of some of Scotland’s best people. The combined strength from working together across the border is greater than the sum of the separate parts.