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FUTURE OF LAW
Why lawyers need to discard nostalgia and wake up to the global reality of change
TECHNOLOGY
Does solving India’s access to justice crisis mean embracing bold technology?
LABOUR TRENDS
Is China leading a race to the bottom or setting standards for global labour?
DEATH PENALTY
Why it’s every lawyer’s duty to advocate for an end to the death penalty in the region
Empowering women lawyers in Nepal Lessons from the difficult and inspiring journey of Nepal’s female advocates
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N E W P O S T G R A D U AT E P R O G R A M S
DESIGNED FOR ASIAN L AW Y E R S
Working with experienced legal practitioners, The College of Law has developed a range of programs at master’s level designed to enhance the knowledge and practical skills of Asian lawyers in key practice areas. T H E M AST E R O F L AW S ( A P P L I E D L AW ) O F F E R S M A J O R S I N : Malaysian Legal Practice - developed in collaboration with Bar Council Malaysia International Legal Practice - focused on ASEAN cross-border legal practice N ew Zealand Legal Practice - covering the legal practice areas needed to sit the New Zealand examinations for foreign lawyers Australian Legal Practice - covering a wide range of practice areas
F I N D O U T M O R E AT W W W . C O L L A W . C O M or visit us at Stand 8, 30th LAWASIA Conference in Tokyo in September.
ISSUE 01
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CONTENTS
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COVER STORY:
Empowering Nepal's women lawyers Sometimes, building the capacity of the legal profession in developing nations requires global input. Australian lawyer Sarah Mellowes (below right) shares the lessons and inspiration from a capacitybuilding exercise in Nepal.
18 Technology and justice
Why the Indian judiciary needs to look to technology to solve the access to justice crisis.
30 Climate change refugees
Are international treaties enough to stop the growing tide of climate change refugees?
34 Social media trends
To tweet or not to tweet? That is the question as social media trends in the Asia Pacific are analysed.
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CONTENTS
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ISSUE 01
40 ILLUMINATION Ideas, analysis and inspiration from leading legal commentators around the globe
40 Abolishing the death penalty
Fiona McLeod on why lawyers must unite to abolish the death penalty in the Asia Pacific region.
46 LIMITLESS
46 Ambivalence and refugees
Francesco Mancini on why Asia has a history of ambivalence towards the plight of refugees.
Words of wisdom on careers, professional development, wellbeing and lifestyle
52 Chinese labour and CSR
70 Professional development
Mimi Zou examines how Chinese multinationals are implementing CSR policies at home and abroad.
Are you a boss or a leader?
72 Grow your cultural intelligence
Why it’s so important to master.
58 The growth of pro bono
74 Time management skills
Melissa Pang examines the challenges and benefits of Hong Kong’s emerging pro bono culture.
64 The changing face of legal practice Frank H. Wu warns that lawyers must swiftly make changes – or face the consequences.
Doing the worst tasks first.
76 Are you getting enough sleep?
80
Why not snoozing is losing.
78 The true meaning of mindfulness Why it’s not just a buzzword.
REGULARS Image credit: quickshooting
04 From the President 06 From the CEO 08 Contributors
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10 News
80 The essential Tokyo city guide
The best bits you just can’t miss.
74 Dream destination Japan
Bliss out at Kamikura Jinja.
16 Leadership 86 LAWASIA 92 Inspiration
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FROM THE PRESIDENT
I
t is my great pleasure to introduce the inaugural edition of Asian Jurist. The launch of this flagship publication marks a significant milestone in the development of LAWASIA and the legal profession alike. LAWASIA has evolved tremendously since its establishment in 1966 as an association of just 17 member nations. It has grown in capability and influence and, today, it proudly serves as the collective voice of a legal profession spread across 41 jurisdictions of the Asia Pacific. The profession itself has undergone a period of acute change, driven by global forces of competition, technological progress, diversification, and shifting political landscapes. The effect is something of a double-edged sword for lawyers, who now grapple with myriad benefits, opportunities and challenges that come with such a rapid transition. To name a few, the needs and expectations of clients are changing; familiar models of legal practice must adapt to the use of new legal technologies; more legal matters now involve cross-border considerations; and there is mounting pressure on legal educators to equip their students with skills never before expected of lawyers. Suffice to say, the legal profession is experiencing a period of unprecedented change. In such formative times, one cannot overstate the importance of forging and consolidating cross-border relations within the legal community. Indeed, the future success of the legal profession requires it to approach its challenges with solidarity, mutual respect, and a dedication to common values. To this end, Asian Jurist represents a new tie that connects lawyers across the Asia Pacific and establishes regional networks based on a shared commitment to advancing the profession. Further still, Asian Jurist is an invaluable aid to LAWASIA’s core objectives of upholding the rule of law, promoting human rights, encouraging business partnerships, and advocating for the interests of the legal profession. I would like to offer my sincere thanks to the editorial team for its outstanding work in bringing this innovative new publication to fruition. I am particularly grateful to the Law Society of New South Wales for its generous support, and to the Managing Editor of Asian Jurist, Claire Chaffey, for her exceptional leadership of the publication. As my term as President draws to a close, I must also thank my LAWASIA colleagues for their commendable service, and extend a warm welcome to the incoming LAWASIA president, Christopher Leong, in whose leadership I have every confidence. Finally, to the many members of the association, I am immensely grateful for your commitment to advancing the regional legal profession, and for driving LAWASIA to achieve the standards of excellence we celebrate here today.
Prashant Kumar President, LAWASIA
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FROM THE CEO
T
here is so much power in collaboration. That’s why the launch of this publication, Asian Jurist, is so exciting and so very important. A unique magazine in many respects, Asian Jurist is the product of months of hard work and the execution of a fresh, creative vision for LAWASIA, which cements its place as the voice of the legal profession in the Asia Pacific region. Asian Jurist is the meeting place of the common ties that bind all lawyers in spite of cultural, linguistic, social and economic differences. It is a vehicle by which leading ideas, trends and analysis on the key themes of rule of law, human rights and business can be shared, conveyed, debated and disseminated. In a world in which the challenges to democracy and the rule of law seem to grow by the day, strong leadership and meaningful collaboration have never been more important. LAWASIA, by its very nature, is tasked with leading the legal profession in the region and uniting us all in a common fight – the fight to ensure the voices of the profession are heard clearly in the most influential corners of society; the fight to ensure lawyers walk together for the greater good under the banner of the rule of law; and the fight to share our experiences, knowledge and determination in a collegiate, supportive and collaborative way. Asian Jurist allows us to do this. By expanding our knowledge and bettering ourselves, by trading our experiences, learnings and ideas, and by coming together as part of a truly diverse and global legal community, we can ensure that the rule of law is not a function that can be easily forgotten or subverted. The vision we have for LAWASIA is that it continues to go from strength to strength, and that it continues to play an active role in regional advocacy, policy and education. You are an important part of that vision. Our members are our lifeblood, our strength and our knowledge. Let’s continue to work together to ensure LAWASIA’s purpose and impact resonate more powerfully than ever before. Welcome to Asian Jurist. We very much hope this will be the first edition of many more to come.
Michael Tidball
Chief Executive Officer, LAWASIA
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AJ_HO
Join the LAWASIA community Uphold the rule of law. Advocate for human rights. Expand business opportunities. Become a LAWASIA member today.
Networking opportunities
Asian Jurist Magazine
Conferences, events and much more ...
www.lawasia.asn.au/membership.html
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CONTRIBUTORS
Contributors RULE OF LAW | HUMAN RIGHTS | BUSINESS
Managing Editor Claire Chaffey Associate Editor Jane Southward Legal Editor Klara Major Assistant Researcher and Editor Kate Hewson Art Director Michael Nguyen Editorial & Advertising Enquiries aj@lawasia.asn.au LAWASIA Level 11, 170 Phillip Street, Sydney, NSW 2000, Australia P: +61 (02) 9926 0165 F: +61 (02) 9223 9952 E: lawasia@lawasia.asn.au © 2017 LAWASIA. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced without the specific written permission of LAWASIA. Opinions are not the official opinions of LAWASIA unless expressly stated. LAWASIA accepts no responsibility for the accuracy of any information contained in this publication and readers should rely upon their own enquiries in making decisions touching their own interest. Asian Jurist is proudly produced in partnership with The Law Society of New South Wales.
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Sarah Mellowes
Mimi Zou
Australia
Hong Kong
Sarah Mellowes is a solicitor at DLA Piper in Sydney. She practises in large and complex insurance and commercial disputes, with a focus on financial lines, directors and officers, professional indemnity, management liability and property. She is also the Sydney Pro Bono Coordinator for DLA Piper and, in April, joined an international training program for women lawyers in Nepal. “I read that a meaningful life is about finding a deeper sense of fulfilment by using your strengths in the service of something larger than yourself,” she said after the experience. “My journey to Kathmandu was life-changing and it left me inspired, re-energised and more committed to the profession. The importance of pro bono work cannot be underestimated.” Mellowes believes it’s important lawyers recognise the responsibility they have to society. “We have the power to make a difference that may seem small at the time but can have far reaching consequences.”
Mimi Zou is the Edwards Fellow in Chinese Law at Columbia Law School and a senior consultant at the International Labour Organization. Zou completed a Doctor of Philosophy in Law and Bachelor of Civil Law degrees at the University of Oxford as a Commonwealth Scholar, and an LLB and Bachelor of Economic and Social Science, all with with First Class Honours. She received the University Medal at the University of Sydney. Zou is an expert in Chinese and comparative employment law and has written widely across numerous peer-reviewed publications. She is recognised internationally for her research which has been cited by the NSW Court of Appeal and in The New York Times, BBC, Reuters, and The Guardian. She has worked in corporate law at firms in Sydney, Hong Kong, and London, as well as in numerous international organisations, government departments, and financial institutions. Zou is a solicitor in England and Wales and also qualified as a lawyer in NSW.
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CONTRIBUTORS
Frank H. Wu
Ananth Padmanabhan
Francesco Mancini
Frank H. Wu is a Distinguished Professor at University of California Hastings College of Law in San Francisco. He previously served as Chancellor and Dean at the school, receiving unanimous renewal after being voted the most influential dean in legal education in a national poll. He was a member of the faculty at Howard University, America’s leading historically black college/university for a decade. He served as Dean of Wayne State University Law School in his hometown of Detroit and taught in various roles at Michigan, Columbia, Stanford, and Peking University School of Transnational Law. Professor Wu is the author of Yellow: Race in America Beyond Black and White. His writing has appeared in The New York Times, The Washington Post, National Law Journal, and the Chronicle of Higher Education. He earlier practised law with the firm of Morrison & Foerster. He is Vice Chair of the National Advisory Committee on Institutional Quality and Integrity of the US Education Department.
Ananth Padmanabhan is a fellow at Carnegie India, based in New Delhi. His research and analysis focuses on technology, regulation and public policy and, in particular, the intersection of these fields within the Indian context. Padmanabhan is also an author, penning India’s leading text on intellectual property rights, Intellectual Property Rights: Infringement and Remedies, and several book chapters including within the recent Oxford Handbook of the Indian Constitution. He contributes regularly to leading Indian publications including the Indian Express and Business Line. Padmanabhan has practised law in the High Court of Madras in India, and taught at various institutions, including the National Law University in Jodhpur and the National Law School of India University in Bangalore. He has a master’s degree in law from the University of Pennsylvania Law School in the US where he is completing a doctoral program there on a non-resident basis.
Francesco Mancini is Associate Dean (Career Services and Student Life) and Visiting Associate Professor at the National University of Lee Kuan Yew School of Public Policy in Singapore. He is also Adjunct Associate Professor at Columbia University’s School of International and Public Affairs, Non-resident Senior Adviser at the International Peace Institute, a member of the Board of Directors of the Academic Council on the United Nations System, a member of the Research Committee of the Institute for Economics & Peace in Australia, Honorary Senior Fellow at the National University of Singapore’s Middle East Institute, and Associate Fellow at the Peace Informatics Lab of the Leiden Universitt in The Netherlands. Mancini’s work primarily focuses on global governance, the United Nations, and the analysis and resolution of conflict. He is a prolific lecturer and presenter and regularly appears on television to comment on international affairs.
USA
India
Italy
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REGIONAL NEWS
INDONESIA
NEPAL
Nepal heads to the ballot box For the last two decades, the absence of political consensus in Nepal has blocked efforts to draft a viable constitution, thereby preventing the conduct of local level elections. Despite bureaucratic impediments and civil unrest, Nepal finally secured progress with the adoption of a new constitution in September 2015. As a result, local level elections are now underway for the first time in 20 years, allowing millions of Nepali citizens to elect their municipal and village council representatives. The polls are celebrated as a formative milestone in Nepal’s transition from “religious monarchy� to “constitutional democracy and secular republic�. The course has not been easy, beset by widespread protests, violent insurgencies, endemic corruption, natural disaster and lengthy delays. Given Nepal’s political history, the success of the 2017 elections is critical to restoring democracy and stability. But political unrest continues, now centred on ethnic minorities in Nepal’s southern lowlands (the Terai region). Terai communities, such as the Madhesi, Tharu and Dalit populations, have opposed the constitution since its adoption, arguing that it fails to represent minority concerns and renders their groups politically marginalised. Protests led by the Madhesi have sought to disrupt the local polls, demanding constitutional amendments as a precondition to their cooperation. The Rastriya Janata Party 10
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Nepal (RJPN) and other minority-based parties initially threatened to boycott the polls unless the constitution was adequately revised. In response, the Nepali parliament split the elections into three phases, separating provinces based on geography and the risk of electionrelated violence. The first two rounds of voting have been completed, but, with the most contentious areas left until last, election dates have been repeatedly postponed. Nepal’s parliament has approved an amendment providing for proportional and inclusive representation of marginalised communities, but minority groups say it is inadequate. The government has promised to vote on a further amendment before Phase Three, but the fragile ruling coalition is struggling to get the necessary majority in parliament to pass the Bill. With Phase Three scheduled for 18 September, the government is running out of time. Despite adverse conditions, the local elections represent a watershed in Nepal’s political development. Voters have consistently demonstrated their commitment to, and enthusiasm for, the new democratic system. When monsoonal rains broke during Phase Two, voters defied the severe weather to cast their ballots. Pending their successful resolution, the local level polls will be followed by provincial and then national elections by January 2018, when the government’s political mandate expires.
Milestone for business and human rights On 16 June, Indonesia became the first Asia Pacific state to launch a National Action Plan on Business and Human Rights (NAP), reinforcing human rights as a central government concern. The plan engages civil society, the private sector and all levels of government to address issues such as fair pay and working conditions, transparency, and environmental certification. Based on the UN Guiding Principles, the NAP will be a source for coherent legislation and policy in Indonesia, vital to the development of an effective remediation process.
MYANMAR
Promising start to new labour dispute system Myanmar’s 2012 Settlement of Labour Disputes Law introduced a new process for resolving conflicts between workers and employers. The system aims to promote consistent and efficient outcomes while minimising the use of litigation – and it’s proving to be effective. Of more than 1,200 cases in 2016, 85% were resolved by local conciliators, leaving few to enter the courts. Stronger industrial relations have also reduced risk and uncertainty, boosting foreign direct investment in Myanmar.
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REGIONAL NEWS
HONG KONG
One Belt, One Road and a potential “super-connector� With its geographical proximity to China, bilingual lawyers familiar with the mainland legal system, and a workforce with expertise in finance, insurance, shipping, trade and logistics, Hong Kong is ideally positioned to take a leading role in supporting China’s Belt and Road initiative (BRI), as a key regional arbitration centre and source of FDI. President Xi Jingping launched the project in 2013 and after just two years, more than 70 countries were involved, and Chinese investment along the route had reached almost $19 billion. With such large and costly trade and infrastructure projects, and with so many players, it is inevitable that disputes will arise. When they do, dispute resolution will be required and Hong Kong is eminently suited to offer its expertise as an arbitration centre. As a member of the New York Convention, and with a reciprocal agreement with China, arbitration awards made in Hong Kong are recognised in more than 150 countries, as well as the mainland. Together with the presence of strong institutions (including the International Court of Arbitration), this enforceability gives added impetus to Hong Kong’s potential role as a BRI keystone. Beyond dispute resolution, Hong Kong stands to fill crucial gaps in finance on the Belt and Road. For the next three years, the Asian Development Bank forecasts a $750 billion annual shortfall in funding for BRI infrastructure projects, despite massive capital investments from China. In this context, few would dismiss Hong Kong’s status as Asia’s secondlargest recipient of FDI. Hong Kong has the ability to attract additional finance from foreign investors, with its trusted common law system, independent judiciary, stable currency, enviable capital market, and strong anti-corruption controls. Membership of the World Trade Organisation, Asia Infrastructure Investment Bank and the BRI further heightens Hong Kong’s capital raising potential. Finally, the BRI must contend with the geographical overlap it shares with the Eurasian Economic Union (EEU). Hong Kong’s close ties with European and Asian powers alike will be crucial to cross-border economic integration and to coexistence (if not harmonisation) with the EEU. See our Illumination article on Page 52 for more on the Belt and Road Initiative.
SOLOMON ISLANDS
1,303 Police and legal officers trained in community policing in Pakistan in 2016.
0%
The tax rate applied to general corporate income in Nauru.
807 People served by mobile courts in Timor-Leste last year.
98
New Zealand's aggregate score (out of 100) in the 2017 Freedom In The World report.
Solomons face post-RAMSI era with hope The Regional Assistance Mission to the Solomon Islands (RAMSI) has withdrawn the last of its personnel after 14 years of peacekeeping and reconstruction in the Solomons. RAMSI was launched in 2003 in response to a five-year internal conflict, which caused hundreds of deaths, devastated public infrastructure and triggered a state of civil chaos. As the prospect of a failed state grew, neighbouring countries implemented RAMSI. The mission comprised more than 2,000 police, military and diplomatic personnel from 15 members of the Pacific Islands Forum, collectively tasked with laying the groundwork for long-term security, stability and prosperity. RAMSI restored law and order, and strengthened public institutions and infrastructure. As the focus shifted from post-conflict support to long-term capacity building, military personnel withdrew and RAMSI entered a transition period that encouraged the Solomons to assume a larger role in leadership and planning. In an address to parliament last month, Prime Minister Manassesh Sogavare stated that, “law and order has been restored, the machinery of Government is functioning again, the economy has recovered and the judicial system has been strengthened; our police force has regained the confidence of our people�. The challenge for the Solomon Islands is to sustain and expand on progress. James Bartley, former Australian High Commissioner to the Solomon Islands, said the gains provided by RAMSI are necessary but not sufficient. Underlying tensions remain and, without careful attention, they could resurface. O C TOBER 2017
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REGIONAL NEWS
PHILIPPINES
Efforts to restore Marawi City The Integrated Bar of the Philippines (IBP) is offering free legal assistance to displaced residents of Marawi City, forced to evacuate amid recent military action against pro-ISIS militants. In May this year, the pro-ISIS militants attacked the city, in the south of the country, with the Duterte Government trying to wrangle back control ever since. The program is designed to assist evacuees in filing claims for personal injury, discrimination and property damage, while also offering referrals to external agencies and helping to certify the identities of internally displaced persons.
The IBP has called for fair indemnity of corporate and residential buildings destroyed by military airstrikes, as well as accurate postmortem reports on civilian bodies found in the wake of the siege. Nearly 350,000 civilians have been displaced since martial law was declared in Mindanao on 23 May this year. IBP chapter president Aminoden Macalandap warns that the ensuing humanitarian crisis will become irrepressible without swift remedial action, calling on all stakeholders to “rally behind the speedy reconstruction and rehabilitation of Marawi City with justice as the ultimate foundation�.
MALDIVES
Sense and sustainability The Maldives is more vulnerable than most to the effects of climate change. As such, the Maldivian government has prioritised environmental sustainability to ensure long-term foreign investment. Tourism, marine products and fisheries are benefitting from a range of initiatives, such as the expansion of value-added production in the fishing industry.
CAMBODIA
Stronger outlook for education Cambodia’s education system is being overhauled, with the government establishing a Directorate General of Policy and Planning, Special Education Department and Examination Department to address systemic issues. A National Early Childhood Care and Development Policy is also underway, reinforcing education as a national priority.
FIJI
Law reports make a welcome comback After a long absence, Fiji is once again publishing official Law Reports. Law Reports were first published in 1876 but came to a halt in 2001. While judgments pronounced in the courts were published on the Pacific Islands Legal Information Institute (PACLII) website and were made freely available, the loss of the Law Reports was keenly felt. “The stability of a State’s legal system is usually assessed by the availability of its laws and their application,� said Justice Suresh Chandra. “This assessment is made possible by the availability of the statutes of that State, as well as its law reports, which show how the laws are interpreted and applied 12
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“The stability of a State’s legal system is usually assessed by the availability of its laws and their application.� in the courts of that state.� In 2013, a committee was established and tasked with the revival of the Fiji Law Reports – a process which has been multi-faceted, with assistance coming from many sources including LexisNexis and the European Union Access to Justice Project.
MALAYSIA
A rising movement for equality Social justice group Bebas (Freedom) was formally launched in Kuala Lumpur on 15 July, advocating for an Equality Act that outlaws discrimination in both the public and private sectors. To advance equality of opportunity in Malaysia, Bebas will conduct diversity and non-discrimination training and host public forums on the constitutional right to religious freedom.
AUSTRALIA
LGBTQI rights via post
Marriage equality in Australia has been forced to a voluntary, non-binding postal survey – a controversial move with results announced 15 November.
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REGIONAL NEWS
INDIA
Supreme Court to rule on “triple talaq� divorce India’s Supreme Court has convened a multifaith bench to determine the legality of “triple talaq� divorce. The Court has received a wave of petitions from Muslim women and advocacy groups calling for the practice to be outlawed as an unconstitutional and discriminatory practice. Rather than hear each petition individually, the Court will rule on the inherent legality of triple talaq in India. As it stands, the practice allows Muslim men to “instantly� and unilaterally divorce their wives by pronouncing “talaq� (meaning “divorce�) three times. According to the petitions and widespread reports, this has often been done impetuously over
“The practice allows Muslim men to instantly ... divorce their wives by pronouncing ‘talaq’ three times.� trivial matters – at times via social media – and has left the rejected wife ruined and without recourse. However, many Islamic scholars say instant divorce is not reflective of the teachings of the Qur’an, which allow only one form of talaq. This, they contend, must be carried out over three months, during which time the couple must undertake counselling and, with the support of elders, work towards reconciliation rather than divorce. The lengthy process is stipulated to encourage careful reflection before the husband pronounces talaq for the third and final time. In many Muslim countries, such as Iran, Turkey, Pakistan and Bangladesh, triple talaq is banned. Those opposed to its practice in India say it is not an Islamic law, but rather a custom that can be changed or banned. Others argue that the State has no authority to interfere in the practice of religion and are vehemently opposed to the Supreme Court’s involvement. The Supreme Court concluded the hearing on 18 May, but has reserved its verdict. Given its potential impact on the relationship between Muslim husbands and wives, all eyes are likely to remain on the Court until the judgment is delivered.
AUSTRALIA
174 Cases heard by Afghanistan's Ending Violence Against Women Court in 2016.
98.6% The literacy rate among female youth in Sri Lanka.
18% The portion of China's $2.3 trillion export market sent to the United States.
1:11 Average time spent on social media per day in South Korea. (Hrs:Min)
Asylum seeker class action to settle for $70m The Australian government has agreed to compensate 1,905 asylum seekers in a proposed settlement of the Manus Island class action. The action was led by Majid Karami Kamasaee on behalf of asylum seekers held at the Manus Island detention centre, who claimed to have suffered physical and psychological harm as detainees between 2012 and 2016. Group members brought a claim in both negligence and false imprisonment against the federal government and two security contractors, Transfield and GS4. The group alleged that the government failed its duty of care by holding detainees in substandard conditions. The extensive list of complaints includes alleged deficiencies in housing, water and medical supplies, as well as alleged physical harm at the hands of other detainees and security personnel. The group further claimed a period of false imprisonment, arising from a decision of the Supreme Court of Papua New Guinea that ruled their detention illegal. Under the proposed settlement, the government will pay $70 million (AUD) in compensation and over $20 million in costs. The sum will be shared among group members based on relative degrees of alleged harm and time spent in detention. The Australian government has strenuously denied the allegations, maintaining that the agreement is not an admission of liability. Settling the case prior to trial in the High Court of Australia was simply the more “prudent� decision, according to Immigration Minister Peter Dutton. The application for approval of the proposed settlement will be heard on 4 September 2017. O C TOBER 2017
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REGIONAL NEWS
DATA VISUALISATION
The Information Society Information and communication technologies (ICTs) shape the nature of daily life. With strong correlation between ICT and economic development, governments are increasingly attentive to national ICT outcomes. This data looks at ICT development in the Asia Pacific.
The ICT Development Index A benchmark measure of progress and disparity in ICT. Based on 11 indicators of access, use and skills, a country's index score reflects its relative level of ICT development.
Access (40%)
Use (40%)
Skills (20%)
The extent of ICT infrastructure and how readily an individual can access basic ICTs.
The intensity of ICT use in society.
The scope of ICT education and the capabilities needed to use ICTs effectively.
Global offline population 74.9%
Africa
58.4%
14
Arab states
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58.1%
35.0%
Asia Pacific
The Americas
33.4%
20.9%
CIS
=
53
%
world population
Europe
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REGIONAL NEWS
ICT development in the Asia Pacific o Korea (Rep.) Hong Kong SAR Japan New Zealand Australia Singapore Macau SAR Malaysia Brunei China Thailand Maldives Iran Mongolia Fiji Vietnam Philippines Tonga Indonesia Sri Lanka Bhutan Cambodia Vanuatu Timor-Leste Samoa India Myanmar Nepal Laos Bangladesh Pakistan Kiribati Solomon Islands Afghanistan
1.00
2.00
3.00
4.00
5.00
6.00
7.00
8.00
8.84
9.00
8.46 8.37 8.29 8.19 7.95 7.58 6.22 5.33 5.19 5.18 5.04 4.99 4.95 4.41 4.29 4.28 3.93 3.86 3.77 3.74 3.12 3.08 3.05 2.95 2.69 2.54 2.50 2.45 2.35 2.35 2.06 2.04 1.73
Significant improvements in the region
Myanmar 13 ranks
Bhutan
5 ranks
Source: Measuring the Information Society Report 2016, International Telecommunication Union
Malaysia 5 ranks
Vanuatu 4 ranks
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Global rank 1 6 10 13 14 20 28 61 77 81 82 86 89 90 102 105 107 114 115 116 117 125 127 128 130 138 140 142 144 145 146 152 153 164
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LEADERSHIP
COURAGE
Tell your story. It is what makes you who you are
Former US President Barack Obama’s longest serving senior adviser, VALERIE JARRETT, gave some graduates from a college in Atlanta, Georgia, some key advice for success earlier this year. Here’s an extract. Valerie Jarrett, Senior Adviser to former US President Barack Obama in Chicago in April 2014. Jarrett oversaw the Offices of Public Engagement and Intergovernmental Affairs and chaired the White House Council on Women and Girls. (Photo by Andrew Nelles)
W
hen you are my age, my hope is that you’ll be able to look back knowing that you embraced your life, fully. Owned it. All of it. Let’s begin with me admitting to you that in my early adulthood, I did not own my life, or tell my story. During my senior year of college, I made what I thought was the perfect plan. First, I would head straight to law school, then I would find the love of my life, marry by age 26, have my first baby by 30, ever mindful of my biological clock, and make partner at a great law firm by the age of 32. Sound familiar to any of you? I went straight to law school. I married the figurative boy next door. I practised law at two prestigious firms. And my daughter was born just before my 29th birthday. Right on schedule, huh? Not so fast! By age 30, my perfect marriage was ... well, not at all perfect. When the reality that my marriage was crumbling sunk in, I crumbled too. The same year, after six years of working towards partnership, I began to look at the lives of the partners, and
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I began to wonder was that the life I really wanted. I thought there must be something wrong with me. My family and friends thought I had the perfect life, but I sure did not feel that way. I felt helpless and stuck. I had to make a decision. Keep blindly following my plan, that perfect plan, that others thought was ideal, or listen to the quietest voice, but the most important. My own. I confessed my growing unhappiness at my law firm, and its likely unhappiness with me, to a dear friend who worked for Harold Washington, the first African American Mayor of Chicago. Mayor Washington was a force of nature, and I had knocked on doors all over Chicago for him during both of his campaigns. My friend urged me to consider public service. He said I would feel each day the same excitement I felt knocking on doors, and I would be a part of something bigger, more important, than myself. So, 30 years ago, I took a leap of faith, and began my career in the public sector. I moved out of my cushy office, and into a tiny cubicle with a view facing an alley. But from my very first
day, I knew that I was right where I belonged. I also slowly realised that just because my marriage was not working, did not make me a failure. My husband and I divorced and as I become secure in my identity — a resilient, devoted single mum. A public servant giving back to the city I love. That’s when I began to own my life. Two years later, a mentor encouraged me to ask for a promotion. It had never occurred to me to do so. I thought my boss should just recognise my talent. My mentor said, “That’s crazy”— that I had paid my dues, demonstrated my work ethic and skills, but unless I advocated for myself, that cubicle would be my long-term home. So I worked up the courage, overcame my fear of rejection, and asked my boss, and he said yes. And as a remarkable bonus, two years and another promotion later, I hired a brilliant young lawyer, and we instantly bonded, because she too had become disenchanted with the law firm life, and wanted to serve her community. Her name was Michelle Robinson, and when we met, she was
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LEADERSHIP
“My advice to you is to surround yourself with people and institutions that respect your values, and are committed to supporting what it takes for you to be healthy and whole.�
President Barack Obama chats with Valerie Jarrett in the White House before a press conference in November 2010. (Official White House Photo by Pete Souza)
engaged to a skinny guy with a funny name — who also wanted to be a public servant some day... The rest is history. (Michelle Robinson and Barack Obama met in 1989 and were married in 1992. Obama went on to serve as the 44th US President from 2009 to 2017.) Now, I am not promising that if are willing to take a leap, and change course, that you’ll become a senior adviser to the US President, but it will enable you to discover your true north. Change is hard. And the higher you climb, the more brutal, and public the criticism. You can’t let your fear of failure hold you back. For when you have the courage to overcome your fear, you will feel exuberant on the other side. President Obama gave me the extraordinary opportunity to advocate for gender equality, civil rights and criminal justice reform. To promote civic engagement to solve the challenges we face here and abroad. To advise him on every single matter that landed on his desk. To be in the room where it happens. It was such an awesome job, and one that I knew I had been preparing for my whole life.
If owning your life means “having it allâ€?, well, I submit to you that we’ve been asking the wrong question. You’ll have so many choices that you’ll be tempted to take advantage of them all, all at once, and expect that you’ll be able to execute with perfection. That’s what high achievers often do. The question should be not can you have it all, but do you own your choices and their consequences. Working is hard. Raising children is hard. Relationships are hard. My advice to you is to surround yourself with people and institutions that respect your values, and are committed to supporting what it takes for you to be healthy and whole. When you interview for a job, make sure you are honest about your needs, in addition to selling your strengths. When I was recruiting her, it was Michelle Obama’s determination to make sure we had a truly good fit that led her to invite me to a fateful dinner with her and her fiancĂŠ 26 years ago. Her fiancĂŠ thought taking the job in the mayor’s office was a risky fit, and he wanted to meet the person with whom she would work. Me. As well as owning your life, you also must be willing to tell your story. You’ll likely want to gloss over, or delete parts of your journey, including mistakes you’ve made. Don’t. They are all what made you who you are. Here’s a part of my story that I rarely used to talk about. My dad was a physician and when he left the army, he could not find a job at a university where they would pay him the same as his white colleagues. He landed a job in Iran, where he helped start a hospital. We lived on a compound with people from all over the world. I spoke three languages (English, French and Farsi).
When I was five, we moved to London and I picked up a British accent. Then we moved to my mum’s hometown, the South Side of Chicago. So imagine me, age six, starting in my local public school, placed two grades up from where I should have been into second grade. Bright red hair, freckles and British accent, born in place nobody had ever heard of. Because my childhood was unusual, I never talked about it. Much to my parents chagrin, I refused to speak Farsi or French. Dropped that British accident. When people asked where I was born, I would feel my face flush as I said Iran, and then try to change the subject. I wanted to be just like all of the other children. So at that first dinner with Barack Obama, when I was trying desperately to recruit his fiancÊ, what did he do? He asked me to tell him my story. Slowly and reluctantly as he prodded, I opened up in a way I had never done before because he made me feel safe by also sharing with me his story. He described similar experiences to mine that he had when he lived in Indonesia. What it was like to be raised by a white mum and grandparents. The emotional and financial impact of having an African dad who abandoned him. We discussed how his mum and my parents valued education, and sacrificed in order for us to have the best. We talked about the courage to take the path less travelled. And our mutual passion for public service. It is likely that our journeys would have taken us in separate directions had we not been willing to open up and share our stories with each other. So tell your story. It is what makes you who you are. O C TOBER 2017
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OPINION
TECHNOLOGY
Breaking the bottleneck
Are digital solutions the answer to India's access to justice crisis? It’s time for the courts in India to embrace the digital revolution and drastically reimagine judicial procedure, write ANANTH PADMANABHAN and MILAN VAISHNAV.
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arious international covenants and charters, not to mention the Supreme Court of India, have long recognised access to justice as a basic human right. Yet, in reality, most litigants in India are denied such access, in large measure due to the pendency problem ailing the country’s courts. Even without citing extensive data, it is clear that the judicial pipeline is badly clogged. There have been three standard responses to fixing the judicial logjam. The first has been to create more specialised courts and tribunals. This has been a documented failure. The courts’ repeated interventions to fix the broken patchwork of tribunals have been unsuccessful; indeed, they have resulted in successive constitutional challenges to the tribunals’ very existence. The second solution is to increase the number of judges. At the 2016 Joint
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Conference of Chief Ministers of States and Chief Justices of High Courts (the “CM/CJ” conference), the then Chief Justice of India T.S. Thakur fervently appealed to the Union government to increase the number of judges by 70,000, a figure calculated on the basis of an optimal benchmark of 50 judges per million residents. Legal scholar Alok Prasanna Kumar has convincingly contested these figures, arguing that achieving them is impossible without seriously compromising judicial quality. Realising this, the 2006 edition of the CM/CJ conference highlighted a third remedy: using information and communication technology (ICT) tools and modern case management systems to improve transparency and the flow of information. In 2007, the Union government launched the eCourts project, which aims, in its first phase, to provide hardware and software applications to courts for the
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OPINION
“Most litigants in India are denied access [to justice], in large measure due to the pendency problem ailing the country’s courts. Even without citing extensive data, it is clear that the judicial pipeline is badly clogged.”
delivery of e-services, such as filing/ checking the status of cases and sending/receiving certified copies of orders and judgments. However, a 2015 National Council of Applied Economic research (NCAER) report concluded that the results of the eCourts project were “suboptimal,” recommending new investments in infrastructure, hardware, Internet connectivity, capacity building, training, and continuous data entry to ensure improved performance. But more personnel, better hardware or enhanced transparency cannot alone rectify the root cause for pendency: inefficient and time-consuming procedures. Thankfully, the second phase of the eCourts project moves beyond computerisation and focuses on automating workflow management and process re-engineering, including through mobile applications. However, this phase still fails to consider the O C TOBER 2017 |
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OPINION
Justice delayed
Highest pendency* in subordinate courts in India
22 years
Chief Judicial Magistrate 1 Nagpur, Maharashtra
13 years
Civil Judge, Senior Division 2 Mansa, Punjab
11 years
Chief Judicial Magistrate Division 3 Khagaria, Bihar
10 years
Civil Judge, Junior Division 4 Basti, Uttar Pradesh
10 years
Civil Court 5 Surendranagar, Gujarat
9 years
Chief Judicial Magistrate 6 Basti, Uttar Pradesh
2 4 6 3 5 1
*Pendency is the average time taken to dispose of cases Source: Access to Justice Survey 2015-16, Daksh, www.dakshindia.org
possibility that a good part of the communication between various actors — judges, lawyers, parties, and court staff — can go digital. In reality, digital replacement implemented in a phased manner, rather than digital support, is likely the best path forward. A revised approach could also leverage innovation models developed outside of government that might lead to a more rapid resolution of the pendency dilemma. One such innovation is IndiaStack — a set of open application programme interfaces (APIs) developed by iSPIRT (Indian Software Product Industry Roundtable) volunteers. Using Aadhaar data for authentication, it integrates presenceless, paper-less, cashless and consent layers, which then can be used by third party developers to offer diverse technological solutions. Rather than insist on centralised technology solutions, the judiciary should allow third-party developers to assist in digitalising the judicial process. The first step the judiciary must take is to open up its data to iSPIRT volunteers, who can develop open APIs on this basis. Third-party developers can then 20
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use this API with the existing set of open APIs under IndiaStack, including eSign and DigiLocker, to build digital solutions that can actually replace various procedures contained in the civil procedure code. In other words, openness on the judiciary’s part can lead to a new kind of procedure — what we term “DigiProcedure.” DigiProcedure can replace service of notices and summons through India Post. It can minimise the work of court staff by easing the filing and scrutiny of new cases. It can even replace hearings that do not require an application of judicial mind and enable a constant channel of communication between various actors. This could encourage more rapid resolution of disputes by freeing up judicial time and enabling the judge to explore out-of-court settlements at any given point. Instant messaging and video call facilities integrated within the third party solution could also improve the speed of court proceedings. To implement DigiProcedure, no complicated hardware training is required. India’s smartphone penetration has created a significant user base comfortable with mobile apps.
But because that penetration is not universal and implementation hiccups will inevitably crop up, DigiProcedure could be initially rolled out for voluntary adoption in city courts. Cyber-security and interoperability concerns do merit serious attention, however. Only third-party developers who sufficiently address them should be permitted access to the open API built around judicial data. DigiProcedure can be deployed to enable law-tech startups to create solutions that courts and other actors can use and on which they can provide instant feedback. This will result in more agile procedures and generate reams of digital data, facilitating big data analytics and learning. It is time for courts to reimagine judicial procedures. DigiProcedure can pave the path through efficient and cheap solutions that build on an existing highway. g ANANTH PADMANABHAN is a lawyer and author of Intellectual Property Rights: Infringement and Remedies (LexisNexis, 2012). MILAN VAISHNAV is an associate with the South Asia programme at the Carnegie Endowment for International Peace in Washington DC. This article first appeared in The Indian Express in February 2017.
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COVER STORY
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COVER STORY
Creating a fairer future Women in Nepal face numerous obstacles when it comes to practising law, but this does nothing to quell their passion and determination to succeed in the legal profession. SARAH MELLOWES reports on a recent international training mission in Kathmandu aimed at building the capacity of a growing cohort of Nepali women lawyers.
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COVER STORY
B
orn into a poor Muslim family in Nepalganj, a town in Western Nepal, Mohna Ansari was determined to make a difference from a very young age. Her parents were uneducated and her father ran a carpentry shop from the family home. “When I was young, I saw that women around me didn’t have knowledge on their legal rights and their access to justice was affected by poverty, ignorance, poor status and lack of family support. I wanted to do something to help poor women,” Ansari recalls. When she was still just a small child, a local feudal landlord influenced the police and the court, seizing the family property and forcing them out on the street. “We became homeless. Our family took shelter in a makeshift structure, the vegetable market, which was built by the municipality and wasn’t in use,” Ansari says. She believes this was what inspired her father to support her education and encourage a career in law. “When I completed high school, our relatives pressured my parents to stop my education and find a groom for marriage,” she says. However, under the tutelage of a respected female lawyer who had met Ansari’s father and heard his story, Ansari received legal training in Kathmandu before becoming not only the first person in her family to graduate, but the first female Muslim law graduate in Nepal. Soon after university, she obtained her license to practise as a lawyer and became the first female Muslim lawyer in the history of Nepal. Today, she is the only female member of Nepal’s Human Rights Commission, where she fights tirelessly for Nepal’s most marginalised and vulnerable people.
A trip to Kathmandu
In March this year, New Perimeter, a non-profit affiliate of global law firm DLA Piper, which provides long-term 24
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Prayer flags blowing in the wind under Boudhanath Stupa.
pro bono legal assistance in underserved regions around the world, partnered with Canadian NGO Women Lawyers Joining Hands (WLJH) and the Nepal Bar Association (NBA) to run a legal training workshop, the Women Lawyers Professional Skills Enhancement Training, for 60 women Nepalese lawyers. In partnership with WLJH, New Perimeter developed the curriculum and sent a team of eight DLA Piper lawyers from offices around the world to deliver the training. The six-day training expanded upon a similar workshop held in December 2015 for 30 female lawyers. Training focused on legal ethics and professional responsibility, corporate and commercial law, arbitration, and intellectual property and technology. It was the biggest event of its kind in Nepal, according to Saroj K. Ghimire, member secretary of the NBA Coordinating Committee and one of the program’s national trainers. The aim of the training was to build and develop the capacity of female lawyers and is part of a larger, long-
term initiative of WLJH and the NBA to provide opportunities for female lawyers in Nepal for professional development and high quality training, particularly focusing on the corporate and commercial sector. One of the guest speakers was Ansari, who spoke of her inspiring work with women in regional areas and explained the importance of female lawyers in Nepal. Like Ansari, the women who attended the training are determined to create a more just and equal society. Sheri Meyerhoffer, a Canadian lawyer and former Head of Mission for the Nepal programme of the International Institute for Democracy and Electoral Assistance (IDEA), is the co-founder of WLJH. She was struck by the significant challenges facing women in Nepal and wanted to do something to improve their prospects. “Even in the most incredible circumstances, they want to practise law – and no one is going to stop them from practising law,” Meyerhoffer says.
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COVER STORY
Facing the patriarchy
Children selling flowers in Nagarkot.
Nepal is a deeply patriarchal society where women face particular hardship. Women continue to be marginalised and excluded from economic and social opportunities, generally due to illiteracy, poverty, and conservative social and cultural norms. About 60% of girls do not finish secondary school, female literacy is less than 50%, and almost half of girls marry before the age of 18 due to economic and family pressures. “Social values and cultural practices are basic barriers for the women in Nepal,” says Rita Mainali, a professor at Kathmandu School of Law. “Social values still consider women as subordinate. Society considers that women can’t go outside of the house and that the legal profession is very challenging, so women can’t go for such a challenging profession.” Women have been allowed to practise law in Nepal since 1960, but continue to make up only a very small percentage, representing only 10% of the country’s registered lawyers and fewer than 2% of those in private practice. Women aren’t afforded the O C TOBER 2017
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“Women fall, or are pushed, into certain areas of law and are rarely paid. This is another reason many female lawyers in Nepal decide to work for NGOs or governmental organisations, which pay a regular salary.”
same opportunities as men and aren’t always encouraged to continue their education or take up the profession. “Women in Nepal aren’t encouraged to become lawyers like men are,” says Saroj Ghimire. “They have greater familial responsibilities, less access to education, fewer peers and role models of their gender, less job security and less access to training, seminars, networking and support.” Meyerhoffer says Nepali families send their sons to foreign law schools, but rarely their daughters. “This experience gives these male lawyers opportunities not available to female lawyers trained in Nepal, such as exposure to international legal knowledge, skills, attitudes and networks,” she explains. Renuka Shah, a practising lawyer and one of the participants in the training program, says that even if women have quality education and are highly qualified, they are not given the opportunity they deserve. Inspired by her father, Ram Kumar Prasad Shah, a former Chief Justice of Nepal, Shah is one of the only female lawyers from her region of Jankapur in Eastern Nepal. Even with her legal pedigree, she is faced with daily obstacles in her professional practice, simply because she is a woman. “There are a lot of challenges for women in Nepal, particularly in the advocacy sector,” Shah says. “The people of Nepal don’t trust women lawyers. If there are two lawyers 26
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– one woman and one man – the clients will directly ask for the man.” Ansari describes a similar problem. “When I became a licensed attorney and started my practice, the clients did not believe I could plead their cases in the court the same as a male lawyer could,” she says. “Only those who couldn’t pay the male lawyers’ fees came looking for my services.” As a result, women fall, or are pushed, into certain areas of law and are rarely paid. This is another reason many female lawyers in Nepal decide to work for NGOs or governmental organisations, which pay a regular salary. Many people recount that in the first few years of a lawyer’s career, male or female, those in private practice do not make a lot of money. So unless women have the support of their families they are often unable to pursue careers in private practice and, therefore, are not exposed to corporate and commercial law. “Those who could pay would hire male lawyers. This made it difficult for the female lawyers to earn a living through private law practice,” says Ansari. “Due to widespread poverty, many clients do not have the capacity to pay for legal services.” Many of the women lawyers discussed the difficulties around receiving payment for their services, and yet very few regularly used retainer agreements. As part of the session on ethics and professional responsibility, the importance of retainer agreements
DLA Piper lawyers Kristin Franceschi, Anne Pachciarek and Andrew Valentine exploring Bhaktapur, an ancient Nepalese village still rebuilding after the devastating earthquakes in 2015 which destroyed many of the ancient temples and buildings.
was explained and a number of samples were supplied for practitioners to adapt to suit their own practices.
The power of language
Even the use of certain terminology in the profession presents challenges to women in legal practice. In Nepalese, the word used to address a judge is “Shreeman”. It is an antiquated term predating when women were entitled to practise law. When used by men, the term translates to “officer”. However, when used by women it is said to translate to “husband”. The very terminology required to address judicial officers has the effect of making women uncomfortable in the court room and can have a detrimental impact on their confidence. Female legal professionals have attempted to change the term, as they are often mocked in court and by clients for referring to judges as “husband”, or, in the alternative, are criticised for being discourteous if they fail to address the judge as such. Despite all the challenges and difficulties they face, the women lawyers of Nepal are
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COVER STORY
Young girls in Durbar Square.
motivated, dedicated, and determined to make a difference. “It is not because of our weakness but because of society’s so-called rules,” Shah explains. “We need to break it down and that will take time.” Ansari expresses a similar view. “Patriarchal values are very strong and deep rooted in Nepal, and it requires continuous efforts to change that. Without active involvement of women in all levels of the legal system, government and corporations, gender equality cannot be imagined.” With the number of female law graduates now representing more than half of all law graduates in Nepal, Swecchya Sangroula, another participant in the training program, recognises the importance of having women represented in all levels of society. “Meaningful and dignified involvement of women would send a message that a woman’s journey does not have to be limited to securing good marks in law schools,” Sangroula says. “It is important to break the norm that, for example, corporate law is traditionally a man’s field. A profession
that lives the values of equality draws respect from communities and younger generations.”
The 2015 constitution After a turbulent political history, the promulgation of Nepal’s new constitution in 2015 has paved the way for the establishment of a democratic political system. Despite these positive changes, Aayushi Koirala, a trainee of the program who works as an associate for a law firm in Kathmandu, believes Nepal still has a long way to go. “Nepal is still a young democracy, where the judiciary is often attacked and the legal system is not completely independent from politics,” Koirala says. Values such as the rule of law, human rights and a competent and functioning system of justice are yet to be firmly entrenched. Certainly, in teaching the session on ethics and professional responsibility, there were many heated discussions about the ethical practise of law and its importance in a functioning justice system.
The new constitution promises proportional inclusion and participation for women, so now more than ever women have an important role to play. “Nepal needs more women lawyers,” says Meyerhoffer. “You need these women at the table as the laws are being written to make sure the laws comply with the principles of the constitution. It’s critical they are there. We need more women who have litigated, who have adjudicated, and who can sit on a bench and judge. The problem right now is having a large enough and broad enough pool of women ready to become appointed to all these positions.” Organisations such as WLJH and programs such as the Women Lawyers Professional Skills Enhancement Training Program are important tools that can assist in creating a critical mass of female lawyers empowered to participate in and influence law reform through their involvement in and appointment to the bodies and institutions that write, interpret and implement the law. O C TOBER 2017
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COVER STORY
DLA Piper lawyer Sarah Mellowes, far back, with women who took part in the 2017 training program.
The role of international partners The International Institute for Democracy and Electoral Assistance published a report in 2015 on Nepal’s Constitution Building Process (Nepal’s Constitution Building Process: 2006-2015, Progress, Challenges and Contributions of International Community). The report concluded that the material and technical support from international partners had been crucial in enabling national actors to achieve their goals. The same can be said in regards to the role of international partners in enabling female lawyers in Nepal. “In countries that lack a robust legal infrastructure, global law firms have a vital role to play in helping to strengthen legal institutions and to advance the rule of law,” says Lisa Dewey, pro bono partner at DLA Piper and the director of New Perimeter. Dewey explains the importance of pro bono work, saying, “Austerity measures in many countries have decreased government funding for legal aid. At the same time, deep gaps in access to justice continue to affect the world’s most vulnerable populations. “Closing those gaps will require far-reaching and creative solutions. Pro bono services on their own cannot meet the need, nor can they replace 28
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government funded legal aid. But they can certainly help broaden access to legal assistance.” Collaboration with international law firms provides for a diversity of ideas and provides opportunities for training and development that would otherwise not be available. Many of the obstacles and challenges are not unique to female legal professionals in Nepal, but are shared by legal professional women around the globe. The training provided a forum in which the international trainers could share their stories about the obstacles faced in their own jurisdictions and the ways in which challenges could be overcome. Some such solutions to challenges – such as the notion of a husband giving up work to become the primary carer of the children so the wife could work as a lawyer – were met with laughter and sense of sheer disbelief. “I mentioned this in a conversation with a group of Nepali women, and they were stunned,” recalls solicitor Jenifer Smith, a partner at DLA Piper. “There were several questions about what I actually meant – ‘He cleans the house? Changes diapers? Takes the kids to school?’ – Yes, yes and yes. This arrangement was unheard of in Nepal
and they could not imagine any of the men they know ever agreeing to it.” There was recognition by participants at the sessions that women share common experiences, due largely to the reality of biology. The importance was in understanding ways and strategies to overcome these challenges. The very nature of the legal profession, particularly in private practice, incorporates a commitment to work and demands long hours. A woman’s desire to raise a family can often be viewed as a demonstration of divided loyalty. However, the incorporation of flexible work practices, affordable childcare, and professional women’s organisations are some examples that have been useful in promoting the continued advancement of women in the legal profession in countries like Australia, Canada and the United States of America, and could be adopted to assist women in Nepal. “One of the biggest challenges for women in the profession is the lack of incentives they have to be there in the profession,” says Sangroula. “For women lawyers, there needs to be something of value to them that would make them feel as if they are being respected in the profession”.
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COVER STORY
“Training programs are especially valuable in countries such as Nepal, where there are no continuing legal education requirements and lawyers often are practising on their own from very early on in their careers.�
Programs such as the Women Lawyers Professional Skills Enhancement Training are one such incentive. “It makes (women) lawyers feel as if they are important enough to be heard,� says Sangroula. “While rich in content and curriculum, one of the most important aspects of this training is the feeling that we matter and that investing in us has been considered a priority. It encourages us.� Training programs are especially valuable in countries such as Nepal, where there are no continuing legal education requirements and lawyers often are practising on their own from very early on in their careers. Overwhelmingly, the feedback from attendees was that the training developed their confidence, and was an opportunity to create and expand their networks.
A new Women Lawyers Club
On the last day of training, the participants decided to form the Women Lawyers Club of Nepal. At the time of writing, the association was in the process of being registered and a website was in development. The formation of the Women Lawyers Club of Nepal is a prime example of the ongoing benefits of the training. The training provided an
opportunity for the women to expand their network and collaborate with other female professionals they would otherwise not have met. It is incredibly encouraging to see the Nepalese women lawyers working together to not only support each other but to bring about change to the whole system. Saroj Ghimire, one of the national trainers of the program and a practising advocate, has also seen the benefits of the training. “I frequently meet one or two trainees each day and it makes me so happy to see them doing well and being interested and participating in the profession,� he says. Meyerhoffer continues to share positive stories about the impact of the program over the years, and recognises the importance and need for a continued commitment to the training. “One of the returning participants told me that after completing the training in 2015 she was inspired to leave her position as a government lawyer and enter the field of corporate commercial law, where now her clients pay her well for her work,� she says.
Professional benefits
Global law firms have the resources and expertise to equip lawyers in underserved countries with the skills
they need to strengthen legal systems and the rule of law in their own countries. The benefits of this type of work are far reaching and have tangible benefits for the law firms and lawyers involved as well, including opportunities for team building, the promotion of cultural literacy and leadership among employees, and improvements in employee recruitment and retention. “Lawyers at DLA Piper report that participating in New Perimeter projects increases their level of professional satisfaction,� says Dewey. Dressed in vibrantly coloured saris and kurtas, the Nepali women navigate the mayhem of Kathmandu traffic on their scooters, weaving in and out of the chaos effortlessly. They brought the same sense of determination and enthusiasm to the training sessions each and every day. The energy and talent of the women lawyers in Nepal is truly motivating, and it is programs such as this that will ensure their success as legal professional and advocates for equality and change. SARAH MELLOWES is a lawyer in the Sydney office of global law firm DLA Piper. The opinions expressed in this article are her own and do not necessarily reflect the views of DLA Piper or New Perimeter. O C TOBER 2017
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F E AT U R E
CLIMATE CHANGE
Shaping better responses to conflict and disaster As the world faces the largest number of refugees since the Second World War, largely driven by conflict and climate disaster, there are many things governments can do now to make things better, writes PROFESSOR JANE MCADAM.
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n average, someone is displaced each second by a disaster-related hazard. That’s about 26 million people a year around the world. However, disaster-related displacement already dwarfs the numbers forced out of their homes by conflict, and this trend is likely to continue as the impacts of climate change mean extreme weather events become more frequent or intense, drought occurs more regularly and for longer, and flooding becomes an annual occurrence. In our own region, following Cyclone Pam in Vanuatu almost two years ago, it was estimated that up to 70 % of the population was displaced. Most people, wherever they are displaced by disasters, will not cross international borders – unlike refugees. Most will move within their countries, often from rural to urban areas. Some
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people will, however, be forced across international borders, and the law has not evolved to accommodate this. Evidence shows that most people want to remain in their homes for as long as they can, and return as quickly as possible. But if people cannot live in safety, dignity, and with access to livelihoods, they may seek to move on. Legal, policy, technical and scientific interventions, including disaster risk reduction, climate change adaptation and mitigation, development, and migration opportunities will determine whether, and for how long, people can remain in their homes – and whether doing so enables them to lead dignified lives or exposes them to risks and increased vulnerability. Identifying the need for a broad, complementary set of policy strategies necessarily affects how international law should progressively develop in this area.
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F E AT U R E
The role of the law
In international law, only a small category of forced migrants are recognised as people whom other countries have an obligation to protect. Under international human rights law, States have the primary responsibility to promote and protect the human rights of all people within their territory or jurisdiction – both citizens and non-citizens. Where people are displaced within national borders, States’ obligations are clear, and are further clarified by relevant soft law instruments such as the Guiding Principles on Internal Displacement. The Guiding Principles, adopted in 1998, are recognised as an “important international framework for the protection of internally displaced persons”, addressing people’s needs and rights before, during and after displacement. The challenge lies in strengthening their implementation in the context of climate change and disasters, and to enhance the capacity of relevant authorities to apply them. Between 2000 and 2015, there were more than 20 cases in Australia and New Zealand where people from Tuvalu and Kiribati argued that they should receive refugee protection from climate change impacts, but all failed. The decision-makers explained that the applicants were not “differentially at risk of harm amounting to persecution due to any one of these five grounds”, that “all citizens face[d] the same environmental problems and economic difficulties”, and were “unfortunate victims ... of the forces of nature”.
The value of human rights law
Human rights law provides the most scope for protecting people against forcible return to circumstances where they face arbitrary deprivation of life, or cruel, inhuman or degrading treatment. Progressive development of the principle of non-refoulement – a fundamental principle of international law that forbids States from sending people to places where they risk O C TOBER 2017 |
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persecution or other serious harm – could offer some protection. For instance, it is possible that conditions in a disaster-affected area, or an area rendered uninhabitable by the impacts of climate change, may mean that returning someone there would expose them to a real risk of death or cruel, inhuman or degrading treatment. Perhaps unsurprisingly, the public’s imagination has been captured by the “big” questions – the idea of “climate refugees” or “sinking island nations” – and the assumption that we need new international treaties to address them. It might seem surprising that as an international lawyer, I do not recommend creating a new treaty on so-called “climate refugees” at this point in time. Not only is the concept legally flawed, it has no appeal in places such as the Pacific because it does not reflect the nature of movement we are likely to see, nor the self-help approach that Pacific Islanders advocate. A new treaty is conceptually problematic, for a start. For instance, why single out “climate change” when we know that the drivers of movement are multicausal? Also, the Refugee Convention is one of the most widely ratified treaties in the world, yet we have more displaced people now than at any time since the Second World War. Treaties must be implemented to be effective, and that requires political will. For most people, more important interventions will include things such as effective early warning systems for disasters, disaster risk reduction schemes, careful urban planning, and sensitive development. Much more can be done now that does not require any new international law. What we need are laws and policies that permit people to remain in their homes, where possible and desirable; to move elsewhere before disaster strikes; and to receive assistance and protection if they are displaced.
The tools required
Some simple measures that can help avert displacement include ensuring 32
A tent camp in Mogadishu,Somalia, a temporary home to thousands of Somali immigrants.
“In recent years, at least 50 States have received or refrained from returning people home in the aftermath of a disaster, but responses have been ad hoc and uncertain. More systematic and predictable responses need to be created.” that building codes are implemented and enforced, that land is not overused for unsustainable development, and that better planning laws are put in place. These kinds of legal responses might not be as racy as new treaties, but they can make a considerable difference on the ground. First, States should enhance disaster risk reduction measures and climate change adaptation to build community resilience. Through the systematic integration of disaster risk reduction measures, people will have a better chance of avoiding displacement if disaster strikes, or being displaced for a much shorter period. The Sendai Framework on Disaster Risk Reduction 2015–30 notes the importance of creating “public policies ... aimed at addressing the issues of prevention ... of human settlements in disaster risk zones”, and calls for the promotion of “transboundary cooperation ... to build resilience and reduce disaster risk, including ... displacement risk”.
Second, providing timely support and assistance is also key. We know from studies of floods in Bangladesh that when people receive prompt and adequate assistance, they are more likely to stay and rebuild than to move on in search of work to survive. By contrast, a year after Typhoon Haiyan struck the Philippines, tens of thousands of people remained displaced because the authorities said it was unsafe for them to go home, but could not offer any alternative. That is the kind of situation likely to see people move on themselves, in precarious circumstances. Third, regardless of what mitigation or adaptation strategies are put in place, some displacement is inevitable. States should ensure there are appropriate laws and policies in place to address the needs of internally displaced people, who will comprise the vast majority of displaced people. They should create more predictable humanitarian and temporary stay arrangements, especially in regions where disaster-related displacement is common (e.g. Central America). For instance, some States already enable
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temporary stay for foreigners caught abroad when a disaster occurs back in their home country. In recent years, at least 50 States have received or refrained from returning people home in the aftermath of a disaster, but responses have been ad hoc and uncertain. More systematic and predictable responses need to be created. Fourth, movement away from affected areas can itself be a type of adaptation. States should boost voluntary migration opportunities so people may move in anticipation of future harm.
The need for safe migration schemes
The Australian Government has acknowledged that the promotion of safe and well managed migration schemes are “a key part of building resilience”. This could include giving people from affected countries preferential access to existing migration categories (e.g. skills, family, education) by prioritising them or by waiving some of the usual requirements; establishing training programs in areas of need, thus giving people the skills they need to migrate for labour reasons; creating special visa categories for people living in particular regions; or establishing bilateral or regional free movement agreements. In the Pacific, more permanent migration might enable a smaller population to remain at home for longer, given that population pressure places strain on scarce resources. Labour mobility can foster remittances (and reduce reliance on foreign aid), facilitate knowledge circulation and skills transfer, and foster positive development in communities of origin. Many migration experts argue that these benefits – individual and structural – counter concerns about “brain drain”. Already, targeted work and education schemes (for both temporary and permanent movement) permit small numbers of Pacific Islanders to move to Australia and New Zealand
annually. A good example is the innovative scheme that Australia ran with Kiribati between 2006 and 2014. It enabled almost 90 students from Kiribati to train as nurses at Griffith University in Australia. On graduation, they were eligible to apply for an 18-month temporary graduate visa (subclass 485), which increased their chances of subsequent employer sponsorship for a permanent visa. This program simultaneously responded to Kiribati’s rapid population growth and youth unemployment rates; a nursing skills shortage in Australia (and globally); and provided a livelihood diversification strategy. If graduates returned home, they took valuable skills with them. An ongoing program is New Zealand’s Pacific Access Category, which provides permanent residence annually to 250 citizens from Fiji, 250 from Tonga, 75 from Tuvalu, and 75 from Kiribati. Eligibility depends on a person having an offer of ongoing and sustainable employment in New Zealand, a minimum level of English, a minimum income, and meeting health and character requirements. This scheme is well-known in the Pacific and is generally regarded positively, although evidence shows that migrants often face significant financial pressures because of the considerable role they take on to support new arrivals from their community (increased weekly costs of 30 to 60%, in some cases). In terms of temporary migration, in the past decade Australia and New Zealand have provided seasonal work visas for about 70,000 Pacific Islanders. While the schemes have not been perfect, they are viewed as a winwin for employers, workers and their families. The New Zealand scheme has been hailed internationally as a “best practice” circular migration program. A report released last month by the Menzies Research Centre, a conservative body, recommended that opportunities for Pacific labour migration be increased, noting that Pacific Islanders had integrated
well into Australia and had made a substantial economic contribution in regional areas. Similarly, findings by the Lowy Institute late last year revealed that allowing just 1% of Pacific Islanders to work in Australia would bring them three times more than what Australia gives in aid. This would mean accepting about 2,850 people a year. The importance of “self-help” mechanisms cannot be overstated. For instance, the bilateral Trans-Tasman Travel Arrangement between Australia and New Zealand enabled 3,600 New Zealanders to move to Australia after the Christchurch earthquakes in 2010 and 2011. Although the agreement was never envisaged as a disaster-response tool, it provided a ready-made self-help mechanism that let people take charge of their own lives, rather than requiring government intervention. Certainly not everybody moved – again reflecting the fact that people have different tolerance thresholds and support networks. Anecdotal evidence suggests many families have moved back now that the situation has stabilised. Finally, planned relocations can help people to move out of dangerous areas in advance, or to resettle in safer areas after a disaster if returning home is not possible. For the past 50 years, most planned relocations have occurred within countries, in the context of development projects, and many have led to impoverishment and discontent. Relocation is a complex and fraught process, requiring in-depth consultation and planning to avoid greater vulnerability and impoverishment. Future human catastrophes are not inevitable. The action – or inaction – of governments will determine whether we see even greater suffering or manageable people movements. g PROFESSOR JANE MCADAM is Scientia Professor of Law and Director of the Andrew & Renata Kaldor Centre for International Refugee Law at UNSW, and the leader of the UNSW Grand Challenge on Refugees & Migrants. This is an extract from her speech at the Mahla Pearlman Oration in the Federal Court of Australia, Sydney, on 9 March. O C TOBER 2017 |
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SOCIAL MEDIA
Tweet justice
Social media can be a key tool in demystifying the court processes and boosting access to justice. However, its use in the Asia Pacific justice system is patchy at best, writes DOMINIC ROLFE.
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wo years ago, solicitor and academic Alysia Blackham was co-presenting her work on social media to a public law conference at the University of Cambridge in the United Kingdom, with her colleague, Professor George Williams. The talk included examples of how members of the US judiciary increasingly were using Twitter, particularly in states where judges were elected. As is increasingly common, her remarks were being “live tweeted”. It wasn’t long before Blackham was able to show the audience an example of social media’s immediacy and reach. “During our talk, we mentioned a certain judge in the United States who was using Twitter as a tool to increase his public profile,” recalls Blackham, a senior lecturer from Melbourne Law School. “Within minutes, he had favourited and re-tweeted the live comment that had been posted on Twitter. When the person who was managing the conference’s Twitter stream interrupted to tell us this, we burst out laughing.” (For the record, Judge Dillard also added his position to the retweet: “Vice Chief Judge, Court of Appeals of Georgia”.) It is almost unimaginable that many judges would let their thumbs do the talking in the same manner as Judge Dillard. And not least because Blackham and Williams’ research on social media and the law in Australia turned up just one publically active Australian judge on Twitter – Lex Lasry, a judge in the Supreme Court of Victoria. A similar search of social media suggests that judges across Asia are similarly shy of posting publically. There is a feeling among many commentators that numerous judges are active users, albeit anonymously. But just as many might be left slackjawed at Judge Dillard’s level of social media engagement, it raises questions about how the legal community should involve itself in this medium. The uneven uptake of social media by courts and tribunals exemplifies how
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China Court on Mobile TV app as of 2016
4.8K+ VIDEOS
676K SUBSCRIBERS
3.5M+ RECORDED HITS
Source: White Paper on Chinese Court Reform released in May 2017.
judicial systems across the Asia Pacific region are grappling with the issue of how to engage with the rise of platforms such as Facebook, Twitter, Weibo, YouTube, LinkedIn and Instagram. In the Australian context, in a 2015 Public Law paper, Blackham and Williams found that “of the (roughly) 19 courts in Australia, six now have an individual social media presence, and two states are represented by a collective presence,” with Twitter and YouTube the dominant platforms. Some, such as the Victorian Supreme Court, have a strong and active presence that are over half a decade old. Others, such as the High Court, have no social media presence at all. Across the Asia Pacific, it is just as patchy. According to Theodore Te, Assistant Court Administrator and Chief of the Public Information Office at the Supreme Court of the Philippines, “as an institution, only the Supreme Court of the Philippines and the State Courts of Singapore use social media as an integral part of communications strategy”. Chinese courts have made use of Weibo, a Twitter-like social media platform widely used in the country. According to an official White Paper on Chinese Court Reform released in May, the three official Weibo accounts of the Supreme People’s Court had more than 33 million followers, posted 25,000 Weibo messages, and received 3.45 million reposts and comments to the end of 2016. In 2015, the Court also released a “China Court on Mobile TV” app. Up to the end of 2016, it had uploaded 4,886 videos, had 676,000 subscribers, and recorded 3,616,700 hits. While official courts in the Asia Pacific may still be coming to terms with the new media platforms, the presence of social media in the legal profession more broadly is becoming the norm. Legal firms use it for everything from recruitment to promoting commentary from their staff. Many are moving to LinkedIn as an alternative non-traditional media and content platform. Facebook and Twitter posts
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increasingly are being seen in evidence, especially in areas such as family law. Courts have long been dealing with questions of what to do about jurors using social media and counsel tweeting proceedings. And its current usage will also lead to potentially vexing questions in the future. For example, as Williams notes, what do we do about new judges who will be appointed over the coming years who increasingly will come with extensive social media footprints? Williams, the Dean and Anthony Mason Professor of Law at UNSW’s Faculty of Law, believes there has been a lag between social media usage in many parts of the population – particularly younger people – compared to the legal profession and the judiciary. “I think a lot of people in the law have hoped to ignore it,” he says. “They put it to one side and that explains some of the uneven uptake. But I think people are coming to an understanding that it’s here to stay, that this is a crucial new communications technology which, like any new technology, will necessarily have an impact on the business of lawyers and courts.”
Social media use in Singapore and the Philippines
For the Supreme Court of the Philippines, the only social media platforms used are Twitter and Flickr. “We do not have a Facebook page, though sometimes I link announcements to my personal Facebook and Twitter page, as do some of my staff to their respective Twitter and Facebook pages,” says Te. He says the current Twitter account was opened in 2013 primarily as a way to draw traffic to the Supreme Court website. “It still does that, although more and more we use it for quick notices and urgent announcements, as for instance, suspension of work, important decisions handed down, or to call attention to a relevant link such as a decision of the court,” Te says. Twitter has allowed the public to engage with the Supreme Court by
allowing real-time posts and reactions, says Te, who adds that they do not engage with those reactions. “We get a quick sense of the temper of the public on specific issues,” he says. “While this does not translate into specific ways by which the court adjudicates (because adjudication should be independent), it is helpful to the Justices to know how the public feels on specific issues. Twitter allows us to do that. Of course, we also monitor on other social media platforms through our own personal Facebook, Instagram, LinkedIn or other such accounts.” Conversely, the State Courts of Singapore’s first foray into social media
“While official courts in the Asia Pacific may still be coming to terms with the new media platforms, the presence of social media in the legal profession more broadly is becoming the norm.” was setting up a Facebook account in November 2013. A spokesperson says Facebook was chosen over other social media channels because it is the most widely-used social media platform. “It allows us to publish in several formats, such as video, photos, and text,” says the spokesperson. “Our Facebook page provides an alternative channel for court users and the public to know the State Courts better and to improve their perception of the State Courts. We provide bite-sized information on court processes, programs, events and new services.”
In 2016, Singapore set up the State Court’s YouTube channel to host informational videos on court processes. “The searchability of information is a pertinent characteristic that factors into our consideration for adding new channels into our communication mix,” says the spokesperson. “Having established an online presence, we strive to keep our social media channels alive with regular updates. We constantly review the way we manage the channels, as well as the reactions to the types of content we publish, so we can improve the way we communicate with our community.”
The Australian experience
Among the Australian courts and tribunals, the Victorian Supreme Court has been one of the leaders, both nationally and internationally, in the area of social media engagement. Setting it up in 2011, however, wasn’t the result of months of testing or mountains of reports and risk management plans. Anne Stanford, former Strategic Communications Manager at the Supreme Court of Victoria and now now Queensland Courts Officer, believes social media feeds have been a critical part of the court’s communication policy – and not just for high-profile cases, but also for letting the community know about recent judgments or events, such as the court’s recent 175th anniversary. “It’s important that the community, no matter what age or generation, is aware of the goings on in the courts,” she says. “The courts are open and transparent, but not everyone can be sitting in court listening to what’s happening. Having a presence is an acknowledgement and recognition that social media is just another conduit to the community.” Stanford, through the Court Communication Committee, also takes a practical view of the risks associated with the courts’ setting up and use of social media. O C TOBER 2017
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“We trust staff with emails and phone conversations,” she says. “And social media is just another phase of office communication. People are still scared of Twitter … but you’ve got to move past that. It’s just another form of communication that you should handle in the same manner as if somebody had rung or emailed you.” The NSW Supreme Court in Australia set up a Twitter account in 2013 and a Facebook page in 2014. A spokesperson for the court says the feeds were similarly set up, among other reasons, to “engage with the public and promote better community understanding of the court, which is consistent with our aim of encouraging community participation in, and understanding of, the judicial system”. A recent Facebook post reached more than 35,000 people and the court says “it appears that the page most appeals to law students who enjoy commenting on and sharing posts”.
The value of a broader audience
The British Columbia Provincial Court in Canada undertook a “Twitter Town Hall Day” in April this year. During Law Week, the Twitter hashtag #AskChiefJudge was used to encourage the public to send in questions for the Chief Judge. It was a Canadian first and, according to some, a world first. During the two-hour event, the court sent 100 replies to questions sent in via Twitter from the public, with many of those linking to legal articles and research. Some relevant questions that hadn’t been answered during the event were subsequently dealt with on the Court’s website. Chief Judge Thomas Crabtree also tweeted a selfie. So while reaching a broader audience is a clear advantage for courts, what does success in the social media space actually mean for courts and tribunals? Blackham says some courts and tribunals might see social media success “as not blowing up, as having no adverse publicity as a result of using social media”. 38
“Ultimately, it’s about connecting with a new audience, enhancing court and tribunal communication, and promoting accessibility and open justice,” Blackham says. The NSW Civil and Administrative Tribunal (NCAT) in Australia has been active on social media since it was set up at the start of 2014. They use social media to educate and inform people about accessing NCAT services, preparing for a Tribunal hearing, sharing new or updated resources that will help people to understand the Tribunal’s processes, and changes to the Tribunal’s operations. Four scenariobased videos on the most common of the Tribunal’s processes will soon be available on the Department of Justice’s YouTube channel in English plus four community languages, and captioned.
to robustly prosecute the law and order debate, causes big problems for courts,” Williams says. “Social media offers a direct channel between courts and the public that we haven’t had before. It’s remarkable in the sense that it offers a powerful new avenue to shape public understanding of what courts do and to get accurate messages out about that role.” However, the humanising of judges and the court processes is a contested space. “It reduces the detachment that courts have traditionally relied on to give them legitimacy and authority to their decision-making,” says Blackham. “It’s a move from old school judging to a more open, transparent process recognising that judges are human beings and encouraging them to engage in that manner. I think there is a strong
“Ultimately, it’s about connecting with a new audience, enhancing court and tribunal communication, and promoting accessibility and open justice.” Williams adds that there can be lost opportunities if courts and tribunals avoid being on social media. “Not engaging comes with a different set of dangers,” he says. “Courts are already being talked about on social media and you’re seeing sometimes fake court pages being set up, for example. So if courts aren’t engaged, they can expect they’ll be talked about, they’ll be represented in ways that may be very harmful, and I think it’s a mistake to let that sort of content go unchallenged.” There’s also the issue of a shrinking media and declining standards in court reporting by traditional media outlets, including newspapers. “There are real problems with the quality of reporting and that, mixed with a great willingness of politicians
core of the judiciary that finds that threatening. I can understand why, because it’s a very different role and is a much more public way of judging.” For Nick Clark, Chief Executive Officer of the Rule of Law Institute in Sydney, courts shouldn’t worry about “humanising” judges or members, but focus on providing access to court and tribunal content. “It may be useful to note the obvious: judges are public officials exercising power as judges – not in their personal capacity,” he says. Clark also believes courts and tribunals should have “output-only” social media accounts as part of their responsibility to be accessible and open to the public. “Humanising institutions such as the courts, rather than judges, by
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informing the public about the work they do, is important in demonstrating how ideas such as the rule of law are principles that exist in practice and are not just lofty ideas only of concern to lawyers and judges,” Clark says. To this end, Williams and Blackham are looking at a large project that will survey how people are using social media in the judicial sphere. “We hope to be answering questions of how it should properly be used in the future and how we should answer some of the big questions about where we should draw the line,” says Williams. “Our view is that, while there are benefits, we do need caution and any use of social media must reflect the status and authority that we need the courts to have in our society.” NCAT also is taking steps to go beyond one-way transmission of information by engaging offline with adverse remarks attached to their social media feeds. “When comments of this type are made, we take the comments off the air and advise the person of the more appropriate channels where those concerns should be directed,” says a spokesperson for NCAT. “Depending on the concerns raised, this may involve lodging a complaint via our online complaint form or appealing the decision if appropriate.” Two-way engagement is something that many courts and tribunals see as a fundamental challenge. Engaging with commentary on social media is not only time and resource consuming, it can open courts to situations that can quickly spiral beyond their original intention. The NSW Supreme Court says they have not used the feeds beyond a virtual information service. “A one-way transmission of information has been preferred to avoid inappropriate or abusive responses,” says a spokesperson. “However, we could be open to an event such as the ‘Twitter Town Hall Day’ in future.” g DOMINIC ROLFE is a Sydney-based editor and journalist.
Why is social media a valuable professional tool? Kate Eastman SC, an Australian barrister, teacher and mediator and a keen Twitter user (aka tweeter), believes the inherently democratic nature of social media is another reason such technology is causing consternation in the legal profession. “The legal profession is hierarchical and that's why I think social media is so interesting for the legal profession,” she says. “A forum such as Twitter cuts across the hierarchical structures of the legal profession. Twitter creates connections and communities that are not based on hierarchy or seniority.” However, in much the same way as it can help courts and tribunals find a new audience, Eastman thinks it can also do the same for lawyers more broadly. “Twitter is a way lawyers can connect with the community and be more accessible, to ‘loosen up’ and shake the stereotype that lawyers are conservative and aloof,” she says. “I also see it as a really valuable professional tool – as valuable as my telephone, in a way.” Eastman follows the Twitter feeds of local Australian courts as well as the US Supreme Court, courts in Canada, Hong Kong, South Africa, the UK and all the international courts and tribunals. “It's
vital for accessing information quickly,” she says. “I can know about a decision of a court in the UK or US that might be relevant to my work within minutes of the decision being handed down. Or, if there's an overseas conference I can't get to, I can follow the tweets of the conference participants and follow the conference proceedings without the cost and time of attending in person.” She also sees it as a way of sharing information with other people, such as her university students, who might be interested but who mightn't have the same level of expertise or experience in researching international law. Eastman also believes the risks for the next generation of lawyers entering the senior ranks of the profession are overplayed. “Over time, people will be able to clearly separate what they know about people from their online presence (personal and professional) and what they expect in a professional environment,” she says. “The next generations will have a very di�ferent view of what's acceptable and what's not to post online. In fact, I think that in the future, the absence of an online presence will be more concerning than having an online presence.”
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ILLUMINATION
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IDEAS | ANALYSIS | INSPIRATION
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DEATH PENALTY
Ambassadors for abolition:
Ending the death penalty in the Asia Pacific Lawyers have a shared responsibility to ensure the rule of law and fundamental human rights are observed across the Asia Pacific - that includes abolishing the death penalty, writes FIONA MCLEOD SC.
A
t 8am on 3 February 2017, I stood in silence with a small group outside the bluestone walls of Pentridge Prison in Victoria, Australia. The inside of the prison has been renovated and now contains modern homes. But, 50 years ago, the walls held men condemned to die. One of those men was Ronald Ryan. On 3 February 1967, he was the last man to be executed in Australia. There were 11 official witnesses to Ryan’s hanging – men required by law to carry out his execution, or to observe it. Among those deeply affected by Ryan’s execution were his counsel, the late Philip Opas QC, who for the rest of his life regretted his inability to overturn the conviction and sentence of death, and barrister Brian Bourke, who remembers Ryan with profound sadness, even today. On the steps of Parliament House a group of university students held an all-
night vigil in protest, hoping to move the Victorian Premier to intervene. But there was no 11th-hour reprieve. There is no kind way to kill. Execution by the State is an affront to human rights and is, on every occasion, cruel and inhumane. It is an ineffective deterrent to criminal offending. It is incapable of responding to rehabilitation, special vulnerability or impairment of individuals. It permits no correction of errors in the judicial process. It punishes all those connected with it. The death penalty is inimical to the rule of law. Since 1967, six Australians have been executed abroad: Kevin Barlow, Brian Chambers, and Michael McAuliffe in Malaysia; Van Tuong Nguyen in Singapore; and Andrew Chan and Myuran Sukumaran in Indonesia. Each death has left a shadow upon the lives of many. O C TOBER 2017
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“There is no kind way to kill. Execution by the State is an affront to human rights and is, on every occasion, cruel and inhumane.”
Progress since Ryan
Australia can proudly say it is one of 104 countries that have abolished the death penalty for all crimes. The Death Penalty Abolition Act 1973 (Cth) abolished the death penalty in Australia’s federal jurisdiction, however it was not abolished in all States and Territories until 1985. In 1990, Australia confirmed, at an international level, its opposition to the death penalty by ratifying the Second Optional Protocol to the International Covenant on Civil and Political Rights. In 2007, Australia sponsored and voted in favour of a landmark United Nations General Assembly resolution, which called for an immediate moratorium on executions as a first step towards the universal abolition of the death penalty. In 2010, the Death Penalty Abolition Act was strengthened to foreclose the possibility of any State or Territory jurisdiction reintroducing the death penalty. Currently, the Australian Government has made the abolition of the death penalty a core human rights objective, as well as a prominent part of its bid for a seat on the United Nations Human Rights Council. It is the opinion of the Law Council of Australia (LCA) that the Australian Government should develop a whole-ofgovernment strategy that puts pressure on retentionist countries in our region. This would include: • developing precedents and procedures for Australia’s opposition to death sentences and executions of foreign nationals; • funding projects that seek to advance the cause of abolition 42
in the region, including advocacy efforts to shift public opinion and key decision-makers; • providing a structure for training and networking of representatives of abolitionist civil society groups in the region; and • providing a structure for engaging with the private sector and supportive high-profile or influential individuals in priority countries.
Australian federal policy guidelines
The LCA is also seeking reform of the Australian Federal Police (AFP) guidelines on international cooperation and the sharing of intelligence – the AFP National Guideline on International Police-to-Police Assistance in Death Penalty Situations. This Guideline contains no requirement that the AFP seek a guarantee from their counterparts that information it provides will not be used by overseas authorities to seek or impose the death penalty against a perpetrator. Between 2009 and 2014, a vast majority of the 1,847 people whose names were provided by the AFP to foreign police forces were being investigated for drug offences in countries where the death penalty is widely imposed and sometimes applied. As we understand it, three to 15 requests for assistance were denied by the AFP because of the death penalty concern. These figures suggest the AFP, when exercising its discretion to disclose information, considers a range of factors – one of which may be the risk of the death penalty. It is unclear how the risk of the death penalty is weighed for or against the provision of information in death penalty cases. Nevertheless,
the figures appear to indicate that requests for assistance from deathpenalty States are approved in the majority of cases. The issue, then, is whether this is appropriate in light of Australia’s opposition to the death penalty. It is the LCA's view that reform would relieve the AFP of the burden of making such complex decisions in life and death matters, and where there may be counter-veiling transnational cooperation objectives. The LCA would therefore support appropriate legislative reform of the Australian Federal Police Act 1979 (Cth), in light of the complexities presently faced by the AFP in exercising discretion to disclose information. ‘A World without the Death Penalty’, the Joint Standing Committee’s excellent final report published in May 2016, contained a recommendation that the AFP National Guideline be amended to include a stronger focus on preventing exposure of all persons to the risk of the death penalty by: • articulating as its primary aim preventing the exposure of persons to arrest or charge in retentionist countries for crimes likely to attract the death penalty; • explicitly applying the Guideline to all persons, not just Australian citizens; • including a requirement that the AFP seek assurances from foreign law enforcement bodies that the death penalty will not be sought or applied if information is provided; and • including a provision that, in cases where the AFP deems there is a "high risk" of exposure to the death penalty, such cases be directed to the Minister.
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Executing countries in 2016 f Countries in the Asia Pacific region + More than one execution but it was not possible to establish a figure
1000s 567+ 154+ 88+
87+
44+
20
14
10
9
6
4+
4
4
3
3
3
2
1
1
+
+
+
m na et dan Vi u hS a ut e So Kor h rt No an iw Ta ana w ts Bo n da Su ine st le Pa a ri ge Ni n pa Ja ore ap ng Si sia ne do In s ru n la a Be ist an gh Af ia s ay h al M des la ng Ba ia al m So
A US t yp Eg n a st ki Pa ia q Ira rab iA ud Sa
n Ira a in Ch
Increase in countries abolishing the death penalty 2007
2008
2009
2010
91
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Source: Amnesty International, Death Sentences and Executions 2016, p 24
Earlier this year, the Australian Government accepted a number of recommendations in the report, including a strategy to guide its advocacy in the region and that “high risk” cases be directed to the Minister for a decision. However, the Government did not accept the recommendation that the AFP should be required to withhold information from other countries in relation to drug crimes unless they can obtain a guarantee the death penalty will not be applied. Consequently, the LCA is concerned that Australia’s agencyto-agency assistance may continue to put people at risk of execution in foreign countries.
Regional and global progress
The long-term trend in the Asia Pacific reflects the global trend towards abolition. Cambodia, Fiji and Timor-Leste have removed capital punishment from their national law. Brunei, the Lao People’s Republic and Myanmar are abolitionist in practice. Thailand has not carried out an execution since 2009. Singapore, Malaysia and Vietnam have either reduced the number of
offences liable to mandatory use of the death penalty or have reduced the number of offences attracting capital punishment. Alarmingly, and despite the trend towards abolition, the Philippines, South Korea, India, Bangladesh and the Maldives have taken steps to reintroduce the death penalty or expand the range of crimes for which the death sentence is available. Our region is home to three of the world’s top five executioners: China, Vietnam and Pakistan. Outside of our region, the United States is the world’s seventh biggest executioner, behind China, Iran, Saudi Arabia, Iraq and Pakistan. The United States is the only country to carry out executions in the Americas, with 20 people executed in 2016. Sadly, since 1973, 150 prisoners sentenced to death and executed in the United States have later been exonerated, according to Amnesty International. While the death penalty remains legal in many American states, its use appears to be slowing. The number of executions last year was the lowest since 1991, and the number of death sentences
imposed was the lowest since 1973. In 2005, the Supreme Court of the United States ruled executions of juvenile offenders unconstitutional, a position consistent with the UN Convention on the Rights of the Child, despite the US not having ratified that instrument. Worldwide, at least 1,032 people were executed in 2016. This figure does not include executions and death sentences carried out in China, which Amnesty International estimates to be in the thousands. In our region, hard numbers are difficult to settle on. In part this is due to the secrecy that often surrounds the implementation of the death penalty. For example, the Malaysian Bar noted on 25 May 2017 that one of four people executed in Malaysia in 2017 has not been identified by authorities. China does not publish statistics about its use of the death penalty and we do not have complete information for several other countries, including Pakistan, North Korea, and Vietnam. Noting the lack of reliable data, if estimated numbers of State-sanctioned killings carried out by North Korea and O C TOBER 2017 |
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the Philippines are taken into account, it is probable that the five countries carrying out the most executions worldwide are all in our neighbourhood. The challenge for abolitionists in the Asia Pacific region is understanding how to create momentum for further progress. We should understand that States have tended to abolish the death penalty incrementally. It is rare for a State to go from active executioner to complete abolitionist overnight. An important observation is that there is a high degree of correspondence between countries that frequently resort to the death penalty and countries where there are strong concerns about rule of law. The combination of fragile legal institutions, weak respect for rule of law, poor human rights protections, and a pervading lack of transparency means it is often difficult to distinguish between judicial and extra-judicial killing. However, the United States example proves that the death penalty is not exclusively a feature of societies with weak respect for the rule of law, and that the fight against the death penalty must be a worldwide one. When urging countries to abolish the death penalty, it must be remembered that only a minority of State-sanctioned killings occur within anything we would recognise as a legitimate legal framework guided by the rule of law. In this context, it is clear that the end of State-sanctioned killings is as much about formal abolition as it is about fostering the development of rule of law throughout the region. Abolition of the death penalty by one country can have a powerful normative effect on neighbouring countries, especially when this is supported by a region-specific mechanism. For example, Eastern European nations rushed to abolish the death penalty in the 1990s, driven by their ambitions for membership of the European Union and the Council of Europe. The Asia Pacific region, by contrast, lacks a comprehensive regional mechanism to give greater protection of human rights. The ASEAN 44
Human Rights Declaration, which was unanimously adopted by ASEAN members in November 2012, was a worthwhile step in the right direction, but problematic as a suitable framework to secure universal human rights. Nevertheless,as Amnesty International notes, there have been positive signs with side events being held urging abolition at ASEAN conferences. Events like the AustraliaVietnam human rights dialogue also provide opportunity for important human rights issues to be raised.
A Council of Eminent Persons
The indication we have from counterpart bar associations and law societies in other countries, and in international lawyers associations such as LAWASIA, is that success in any strategy of abolition will require consistent dialogue on this issue throughout our region. The LCA believes the judiciary and legal profession have a special role to play in leading this dialogue as ambassadors for abolition. This could be achieved through the creation of a Council of Eminent Persons from across the region, including senior judges, lawyers, and those with specialist knowledge in the field. Building on established relationships of trust in the region, those on the Council could act as influencers and advance regional discussions in private and public fora. The Australian profession can play an important role on this Council. It would be a natural extension of the Australian legal profession’s longstanding view that the death penalty represents such a grave human rights violation that it transcends considerations of State sovereignty and becomes the legitimate subject of comment and scrutiny by individuals outside the State. However, it is even more important that the Council includes and supports eminent members of the profession from countries that are yet to abolish the death penalty. In addition to a
Abolitionist and retentionist countries in 2016 Abolitionist for all crimes 104 Abolitionist for ordinary crimes 7 Abolitionist in practice 30 Retentionist 57 Source: Amnesty International, Death Sentences and Executions 2016, p42
Council of Eminent Persons, there is an important opportunity for peak legal bodies in our region to mutually support each other in pushing for the abolition of the death penalty and other improvements to the rule of law. LAWASIA does and should continue to play a central role in facilitating and enabling this mutual support.
Conclusion
Abolition of the death penalty remains as relevant an issue in 2017 as it was in 1967. While there has been immense progress over the course of the last 50 years, as lawyers, it is our shared responsibility to continue to work to ensure that fundamental human rights and rule of law is observed across our region. We should not judge our success in this endeavor by how far we have come, but by our strength, unity and persistence in meeting the challenges ahead. g FIONA MCLEOD SC is President of the Law Council of Australia and practises at the Victorian Bar, primarily in public law, human rights, commercial, constitutional and common law matters. She has practised at the Victorian Bar since 1991 and was appointed Senior Counsel in 2003.
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A man enters Katsikas refugee camp in Greece.
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REFUGEES
No common view: Asian ambivalence toward refugees In the face of a growing global refugee crisis, the Asian region remains ill-equipped to cope, writes FRANCESCO MANCINI.
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n 2015, more than a million migrants and refugees crossed into Europe, sparking a crisis with deep political and social implications. But refugees are not solely a Western problem. In that same year, thousands of Rohingya refugees from the Rakhine State in Myanmar and illegal migrants from Bangladesh were found stranded on shabby boats in the Andaman Sea. A testament to the regional attitude toward refugees, a game of maritime Ping Pong ensued between Thailand, Indonesia, and Malaysia, with the respective navies pushing the boats from their coasts. The crisis was addressed only when the Philippines offered to open their doors to the refugees, and then Indonesia and Malaysia agreed to provide temporary shelter. Refugees are not a new challenge for Asia. In fact, Asia hosts the largest number of refugees in the world. The top hosting countries are Turkey (2.7 million), Pakistan (1.5 million), Lebanon (1 million), and Iran (970,000), while Southeast Asian countries have more than 500,000 refugees. While the Rohingya tend to capture headlines, the crisis extends to the Chin, the Kachin, the Shan in Myanmar, and other groups, such as the Karen in Northern Thailand. Asylum seekers also come from Bangladesh, China, North Korea, Pakistan, Sri Lanka, Somalia, and Syria. Most of these refugees end up in poor countries that have limited resources and capacities to provide for their wellbeing and management. Despite these numbers, the Asian region remains ill-equipped to effectively respond to this challenge. The continent has been historically very conservative in accepting refugees and asylum seekers. It has the fewest signatories to the Refugee Convention, and the countries in the region have not developed any effective collective approach to deal with decades-old refugee crises, preferring bilateral solutions, such as repatriation and border policing. O C TOBER 2017
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Refugees from Afghanistan wait on the Greek island of Lesbos for a ferry to mainland Greece.
The reasons for ambivalence
Before speaking of ambivalence, it is important to distinguish the statement. West Asia, what the Western-centric view of the world calls the Middle East, as shown earlier, hosts the largest number of refugees in the world. Jordan, Lebanon, and Turkey all opened their borders to Syrian refugees. Turkey, which is home to around 45 per cent of all Syrian refugees in the region, has built many high-functioning refugee camps that reportedly have markets, reliable heating, communications infrastructure, and interpreters. It has also provided free access to health and education for all registered refugees. Jordan, which has a long tradition of catering to Palestinians, has opened its borders to Syrians, despite strains on the country’s economy and host communities. The 2017-2019 Jordan Response Platform for the Syria Crisis consists of steps to turn the Syrian refugee crisis into a development opportunity, with an emphasis on education to improve employment prospects and on strategic partnerships to support Syrian host communities. Pakistan, the second largest refugee host in the world, has been welcoming Afghans since the Soviet invasion in the 1970s. Under its National Refugee Policy, the Refugees Affected Hosting 48
Areas have seen the implementation of medium-sized development projects in areas including education, health, and livelihoods. However, because an antiPakistan version of the Taliban began to surface in the aftermath of the US war in Afghanistan in 2001, refugees are now being pressured to return back to Afghanistan. With that said, Asian ambivalence toward refugees is undeniable. The reasons are multifaceted, but primarily have roots in history and culture, rather than economics and politics. At first, it might seem that geopolitics plays a role in Asian ambivalence toward refugees. Asian countries are the least likely to have signed many human rights and international humanitarian law treaties. Even the term refugee is problematic. ASEAN, for example, prefers to adopt the term “irregular migration”, which put an emphasis on security, rather than humanitarian needs. Politically, this can be explained by the Euro-centrism of the Refugee Convention at the time of its creation in 1949-51 in Geneva. In the aftermath of the Second World War, European states came together in an unprecedented way to address the incumbent challenge of mass displacement, possibly also out of repentance for the traumatic events of the War. Most Asian countries were
absent at the time and those that were included were marginalised. During those years, millions of Asians were displaced often as a result of social and political changes due to decolonisation, but those forced migrants did not fit the definition of refugees in Geneva. Still, over 65 years later, the European “imposition” argument sounds a bit hollow. The region could have developed its own norms and mechanisms to deal with refugees, as other regions like Central America and Africa did. During the above-mentioned Rohingya crisis in 2015, the lack of normative or policy frameworks at ASEAN level was evident. Turning to the level of economic development, wealth seems to be another poor predictor of refugee openness. Poor countries in the region host more refugees than their richer neighbours. Indonesia, Malaysia, and the Philippines all host refugees, including some from Syria. In most cases, Southeast Asia is a transition toward other countries. Japan, Singapore, and South Korea, three of the richest countries in Asia, have highly restrictive refugee policies. Size is an obvious limitation for Singapore while South Korea is currently managing the resettlement of approximately 30,000 co-ethnic defectors from North Korea. Japan
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“This ambivalence is due in large part to history and culture. Asian states hold a narrow view of sovereignty, deterring them from accepting and implementing global norms that are deemed an interference on domestic dynamics.”
has opted to become the fourth largest donor to the UN refugee agency, but its borders remain essentially closed to asylum seekers (in 2016, 600 non-ethnic Korean refugees had been admitted). China also remains highly reluctant to accept refugees. Although President Xi Jingping pledged a combined $135 million in humanitarian aid during his last year’s tour of the Middle East and G-20 summit, he keeps Chinese borders closed to asylum seekers. The last time China accepted a large number of refugees, mainly ethnic-Chinese, was in 1979 during the Sino-Vietnamese war, when it resettled approximately 300,000 refugees from Cambodia, Laos, and Vietnam. This ambivalence is due in large part to history and culture. Asian states hold a narrow view of sovereignty, deterring them from accepting and implementing global norms that are deemed an interference on domestic dynamics. This does not only manifest itself in refugee issues. Asian countries, for example, have the lowest rate of acceptance of the compulsory jurisdiction of the International Court of Justice and of membership of the International Criminal Court. This conservative view on sovereignty has cultural roots, as ethnicity and shared cultural identity are historically
key ingredients of nationhood. In the United States, for example, there is a more dynamic concept of citizenship, something that can be gained simply by moving there. In many Asian countries, particularly but not only in East Asia, the narrative around nationhood is more static. In China, for example, the government recognises a certain number of “official” ethnic groups. More broadly, people do not belong to a country just because they moved there, but because they share a common history and heritage. In fact, when Asian countries accept refugees, they tend to only accept ethnically homogeneous people. Religion is also a factor, as many Asian countries carefully manage the religious mix of their population. The fact that many refugees happen to be Muslim also creates an additional inhibition in nonmajority Muslim countries, particularly now. Of course, this is not the sole reason, but it is a big part of it. For example, apart from Islamophobia, the Rakhine Buddhists in Myanmar see the Rohingya as competitors for scarce economic resources.
The way forward
The traditional view of sovereignty espoused by many Asian states, as well as their complex cultural dynamics, will continue to slow the expansion of
humanitarian norms and mechanisms in the region, notwithstanding the country differences described above. In the case of the Rohingya crisis in Myanmar, some have suggested invoking the Responsibility to Protect (RtoP), a global commitment to prevent genocide, war crimes, ethnic cleansing and crimes against humanity. This is an objectionable suggestion. First, there is no agreement on labelling the violence against the Rohingya people as genocide. Second, the Responsibility to Protect is a moribund political norm, which was given a near fatal blow in the aftermath of the messy international intervention in Libya that was authorised under the RtoP principle. In a region where sovereignty and non-interference are jealously guarded, there is no political space for such an approach. While some refugees can be seen as useful resources to sustain economic growth in Asian countries, security is a more promising path toward policy development in refugee matters. The recent surfacing of the horrors of detention camps and mass graves operated by human smugglers in Malaysia and Thailand, whose discovery also led to the arrest of local Malaysian police and Thai officials on suspicion of collaboration with the traffickers, has renewed the awareness of the O C TOBER 2017 |
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“While some refugees can be seen as useful resources to sustain economic growth in Asian countries, security is a more promising path toward policy development in refugee matters.”
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weaknesses in regional border security. With the present threat of Southeast Asian violent jihadists returning from Iraq and Syria, dealing in a coordinated and effective way with human dislocation becomes an urgent matter. Refugees are too big of a problem to be left in the hands of criminal networks and corrupt officials. A different threat that is likely to trigger large refugee flows is climate change, especially with respect to the abundant low-lying coasts and islands around the world. The Asia Pacific region will be seriously affected by this eventuality and mechanisms to deal with a flood of climate change refugees are badly needed. In Bangladesh, for example, cyclone Mora displaced 500,000 people in low-lying lands and left over 200,000 Rohingya homeless and living in flimsy makeshift camps. Security is already the preferred framework of cross-border cooperation on illegal migration. The Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime, an international forum with predominant Asian membership 50
established in 2002, has started a regional conversation on the consequences of people smuggling, and aims to develop practical cooperation. The legally non-binding 2016 Bali Declaration recognised the need for “a comprehensive regional approach” to address irregular migration. As in other areas, such as economy and trade, Asian policies in this matter will see a slow trend toward “convergence”, a term preferred in the region to “harmonisation,” a concept linked to supranational entities like the European Union. As Asian countries continue to rise politically and economically on the geopolitical stage and consolidate their societal identity around their economic successes, it will eventually become more natural for them to open up to diverse people and cultures. g
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FRANCESCO MANCINI is Assistant Dean and Visiting Associate Professor at the National University of Singapore’s Lee Kuan Yew School of Public Policy, as well as Adjunct Associate Professor at Columbia University’s School of International and Public Affairs. He is also a Non-resident Senior Adviser at the International Peace Institute in New York. This article was first published in Foreign Affairs.
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Chinese multinationals and corporate social responsibility As China becomes increasingly influential in the global political economy, the world is waiting to see just what this will mean for global labour practices. MIMI ZOU writes.
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hinese multinational enterprises (MNEs) are emerging as increasingly influential actors in the global political economy. Since the late 1990s, China has adopted a “Going Out” industrialisation policy entailing the accelerated internationalisation of Chinese firms to acquire assets and expand operations abroad. The socalled “One Belt, One Road” (OBOR) is the centrepiece of the current phase of Beijing’s Going Out strategy. A key aim of this initiative is to foster greater economic connectivity between China and more than 60 countries, with an emphasis on regional infrastructure and transportation development. OBOR is expected to bring a range of benefits for China, such as providing new markets for exports and outward direct investment (ODI) opportunities, facilitating industrial upgrading and relocation of low value-added sectors, redirecting excess production capacity, diversifying foreign exchange reserves, and creating new growth and development drivers. With the rapid growth of the numbers, types, sectors, and destinations of Chinese ODI, critics have expressed concerns over the impact of Chinese investments on host countries. These concerns have been especially
acute in relation to investments in “weak governance zones” – a term used by the OECD to describe host countries “where governments are unwilling or unable to assume their responsibilities”. Chinese firms investing in some of these host countries have been subject to criticisms of engaging in poor labour, safety, and environmental practices in their business operations. The conduct of Chinese State-owned enterprises (SOEs) and private firms investing along the OBOR are likely to be subject to ever-greater scrutiny. Beijing’s grand plan has been viewed as an ambitious geo-political strategy that reflects its desire for a bigger role in global affairs. As such, there may be an expectation among some parts of the international community that China should ensure that its firms act as good corporate citizens abroad. Indeed, unfavourable consequences for China’s image arising from the conduct of some Chinese MNEs abroad have prompted Beijing to introduce a flurry of regulations and policies in recent years to promote corporate social responsibility (CSR) in these firms’ overseas operations. With the OBOR, the world’s largest industrialising economy is pursuing a new development strategy that aims to broaden its role in global markets
“China’s accession to the World Trade Organization in 2001 accelerated the pace of economic restructuring, bringing with it an even more diversified labour market.” and production networks as well as its geo-political influence. How China will shape the governance of labour and environmental standards on a global scale is a critical issue. Could China (including its public and private actors) become a new standard-setter in these domains? Or will Chinese firms drive a “race to the bottom” in the weak governance zones of OBOR? These important questions have yet to garner much attention in the somewhat feverish debate over Beijing’s latest plan. In this article, I focus on how China may change the world of work and the debates on globalisation and labour standards – in light of the internationalisation of Chinese MNEs through rapidly expanding ODI activities. Drawing on recent research O C TOBER 2017
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on the labour practices of Chinese firms abroad, this article seeks to elucidate the potential challenges and risks for regulating labour standards along the OBOR.
Labour standards and Chinese MNEs
Global debates on China and international labour standards during the 1990s were primarily concerned with the country’s rise as a global manufacturing powerhouse that relied on a seemingly abundant pool of low-wage, unskilled or lowskilled rural migrant labour. Acute competition among local governments to attract and retain investment often led to the lax enforcement of labour and environmental laws. There were concerns that sweatshop conditions in the so-called “world’s factory” would drive a “race to the bottom” in labour standards globally. Recent years have seen new controversies over Chinese firms “exporting” poor working conditions to host countries as well as exporting large numbers of Chinese workers in their ODI activities. In construction and infrastructure project contracts in Africa and Southeast Asia, the en masse engagement of Chinese dispatched workers was sometimes specified in the contracts as a condition of the low bidding price put forward by Chinese firms. Labour disputes (sometimes quite confrontational and violent) involving Chinese firms and local workers in various host countries have attracted considerable international media attention. The Ministry of Commerce has explicitly acknowledged the involvement of the Chinese 54
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government in handling major labour disputes in foreign countries. Studies have highlighted several factors influencing the labour and human resource practices of Chinese MNEs. These factors include the firm’s industrial sector, ownership form, position in the global value chain, organisational resources and managerial competence, as well as institutional factors such as the role of the Chinese State, regulatory environment of the host country, and the engagement of firms with the host country’s local media and communities. The Chinese State’s substantial influence on the operating environments of Chinese firms abroad has been highlighted. This is particulary the case in certain sectors such as energy and construction, where many Chinese MNEs are State-owned or State-connected. In the case of SOEs, the political ties of these firms to the State have generally entailed a hands-on role of the Chinese government in organising State capital and labour flow to host countries. Furthermore, in fostering and leveraging political capital based on diplomatic relationships and financial support, especially in relation to less developed host countries, the Chinese government provides a brokerage role in
facilitating market entry and business opportunities for Chinese firms in those countries. Nevertheless, numerous host countries have seen local public sentiments and political opposition against Chinese investment — as evident in the run-up to the Zambian election in 2011 where the opposition party succeeded on such a platform. A key question arises as to whether Chinese firms export practices abroad in some sectors that have been associated with low wages and poor working conditions back in China. Chinese policymakers have been promoting the transfer of China’s labour intensive industries to countries in Africa, with “model projects” of Chinese firms training and hiring local workers. However, research on Chinese firms operating in Africa has largely pointed to low wages, poor job security, lack of health and safety protections, lack of collective bargaining, and tense labour relations – particularly in manufacturing, construction, and mining. A controversial incident of late was a violent labour dispute that took place in February and March 2017 in a Chineseowned textile factory in Myanmar, a significant OBOR partner to China. The Chinese company set up the factory in Yangon in 2014 and manufactured
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“How China will shape the governance of labour and environmental standards on a global scale is a critical issue. Could China (including its public and private actors) become a new standard-setter in these domains? Or will Chinese firms drive a ‘race to the bottom’ in the weak governance zones of One Belt One Road?”
clothing for a leading global fashion retailer, H&M. It was reported that the minimum monthly wage in Myanmar was one-third of the rate of Hangzhou, the company’s former production base in China. Several hundred local workers in the Myanmar factory went on strike for nearly a month and the dispute erupted into violence, with video footage of local workers beating Chinese managers and damaging facilities in the factory. The company finally agreed to the workers’ demands of compensation for overtime and to reinstate a local labour union leader who had been sacked by the company. Weak regulatory environments in some host countries can be exacerbated by their economic dependence on foreign investments, undermining efforts to protect and improve labour standards. In numerous OBOR countries, the domestic legal frameworks protecting workers’ fundamental rights are fraught with challenges on paper and in practice. Notably, the core International Labour Organization (ILO) Conventions relating to freedom of association and the right to organise and collective bargaining have not been ratified by almost one-third of the OBOR countries, including China itself.
Beyond weak governance zones, a broader trend across many countries (including advanced industrialised countries) has been the withering away of the State’s capacity to intervene in national labour law systems. In contemporary debates on global labour governance, a noticeable discourse shift can be observed in the growing attention accorded to CSR and “soft law” regulatory approaches by nonState actors such as corporate codes of conduct, instead of “command and control” regulatory mechanisms that traditionally incorporated a strong interventionist role for the State.
Towards regulating corporate social responsibility?
The development of a CSR regulatory discourse in China has been a relatively recent phenomenon. The Company Law 2006 first included a CSR provision which states: “In its operational activities, a company shall abide by laws and administrative regulations, observe social morals and commercial ethics, persist in honesty and good faith, accept supervision by the government and the public, and assume social responsibility”. In 2008, the State-owned Assets Supervision and Administration Commission issued its own Guidelines that oblige SOEs
directly under the Central government to establish necessary CSR mechanisms. In recent years, specific policy instruments have been introduced to address CSR issues of Chinese firms abroad. For example, an Opinion issued jointly by six government departments in 2012 aims to encourage compliance with local laws, morality in business dealings, CSR, and risk assessment in the corporate culture of Chinese MNEs operating overseas. There are also sector-specific instruments such as the Guideline for Social Responsibility in Outbound Mining Operations issued in 2014 by the Chinese Chamber of Commerce of Metals, Minerals and Chemicals Imports and Exports. The Guidelines direct Chinese mining firms to strictly “observe the United Nations Guiding Principles on Business and Human Rights during the entire lifecycle of the mining project”. Furthermore, China’s National Human Rights Plan (2016-2020) made specific reference to the need for policymakers to “urge overseas enterprises to abide by the laws of the countries in which they are stationed, and fulfil their social responsibilities in the process of conducting foreign economic and trade cooperation, providing assistance and making investment”. O C TOBER 2017
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The impact of regulation
The actual impact of these measures seems to be mixed. The Chinese Academy of Social Sciences has reported 1,703 CSR reports issued by Chinese firms at the end of 2015 (although it noted this was a significant increase from the 32 reports issued in 2006, when the revised Company Law introduced a provision on CSR). The vast majority of reports were from SOEs and listed companies. At the time of writing, around 290 Chinese firms (out of a total of 9,000 companies globally) have signed up to the United Nations’ Global Compact, a voluntary initiative for businesses to report on their implementation of 10 core principles that cover human rights, labour, environment, and anti-corruption issues. The diverse motivations, strategies, and experience of Chinese firms in “Going Out” need to be taken into account. Some firms with a better reputation for CSR and decent employment practices in host countries may have a more visible public profile (such as consumer brands) and/or have a greater need to attract and retain employees in a competitive labour market for skilled workers. On the other hand, firms in lower value-added, labour-intensive sectors that are at the bottom of buyer-driven global supply chains tend to be more sensitive to 56
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the cost of labour. Such firms may use ODI as a strategy for taking advantage of lower labour standards in host countries (vis-à-vis their home country), as reflected in the increasing trends of offshoring and relocation of production to Southeast Asia by Chinese firms in the textile and garment sectors.
“An important question is whether civil society organisations can mobilise and apply pressure on Chinese MNEs to improve their practices and/or lobby governments of home and host countries.” Conclusion
Overall, it can be said that the trajectory of CSR development pertaining to Chinese MNEs’ operations abroad reflects a top-down process, driven by the State. An important question is whether civil society organisations can mobilise and apply pressure on Chinese
MNEs to improve their practices and/or lobby governments of home and host countries. The operations of NGOs in China are significantly constrained within the existing legal and political frameworks. With a new Law on the Administration of Overseas Non-Government Organizations promulgated in May 2016, foreign NGOs in certain areas of operations are subject to greater scrutiny. With OBOR, Beijing will have a sustained role in accelerating Chinese ODI across diverse countries and sectors and facilitating the further internationalisation of increasingly powerful Chinese MNEs. In-depth research on how Chinese MNEs are engaging with, defining, and implementing international labour standards along the OBOR would add to our understanding of the ways in which China’s public and private actors are shaping and possibly re-making the rules of the game in a new era of globalisation. g DR MIMI ZOU is a UK and Australia-qualified lawyer and Career Development Fellow in Chinese Commercial Law at the University of Oxford. This essay is an edited extract of a paper presented at the “5th Conference of the Regulating for Decent Work Network” at the International Labour O�fice Geneva, Switzerland, from 3-5 July 2017. Her email for correspondence is: m.zou@oxon.org
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AJ_HO
Scramble your eggs, not your investments Join LAWASIA for a breakfast forum in Sydney this October Topic:
Foreign Direct Investment in the Asia Pacific: A LAWASIA Perspective Date: 9 October 2017 Location: The Law Society of New South Wales, 170 Phillip Street Sydney, Australia
For more details visit: www.lawasia.asn.au/events.html
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PRO BONO
For the public good:
Hong Kong's burgeoning pro bono culture The delivery of pro bono services is essential if societies are to uphold the rule of law and allow citizens access to justice. MELISSA PANG examines the current status of pro bono in Hong Kong.
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Photo by Rikki Chan on Unsplash
he rule of law is a fundamental cornerstone of Hong Kong’s prosperity and success as a leading international commercial and financial centre. Access to justice – including access to legal advice, legal representation and the courts – is a fundamental element of the rule of law. The right of access to justice is enshrined in the Hong Kong Basic Law. Article 35 of the Basic Law reads: “Hong Kong residents shall have the right to confidential legal advice, access to the courts, choice of lawyers for timely protection of their lawful rights and interests or for representation in the courts, and to judicial remedies. Hong Kong residents shall have the right to institute legal proceedings in the courts against the acts of the executive authorities and their personnel.” Furthermore, Article 39 of the Basic Law provides: “The provisions of the International Covenant on Civil and Political Rights … as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region.” The Hong Kong Bill of Rights Ordinance Cap. 383 incorporates into Hong Kong law the provisions of the International Covenant on Civil and Political Rights (ICCPR). Article 14(1) of the ICCPR guarantees all individuals the right to a fair hearing which is further safeguarded by article 14(3), stipulating that a person charged with criminal offence shall be entitled to have legal assistance where the interests of justice so require, and without payment if he does not have sufficient means to pay for it. O C TOBER 2017
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Lawyers and litigants in person
The Hong Kong legal profession comprises solicitors, barristers and foreign registered lawyers. As of 30 June 2017, there are more than 10,000 solicitors, 1,300 barristers and 1,300 registered foreign lawyers. Under this sophisticated legal system, costs of legal services are generally high. At the same time, there is increasing polarisation of wealth and income in Hong Kong. According to the household income distribution report released by the Census and Statistics Department in June 2017, Hong Kong’s wealth gap has widened to a historic high, with the richest household now earning about 44 times what the poorest family earns. The Gini coefficient increased to 0.539 in 2016, which is the highest since Hong Kong began to keep records of income equality 46 years ago. This inequality has resulted in the underprivileged being unable to afford expensive legal fees. Furthermore, the number of unrepresented litigants in the courts is rising, around one-third of cases in the Court of First Instance involve at least one litigant in person, while in the District Court more than half of cases involve at least one litigant in person. The Resource Centre for Unrepresented Litigants, run by the Hong Kong judiciary, provides assistance to unrepresented litigants for civil proceedings in the High Court and District Court (except those relating to matrimonial, lands, employees’ compensation and probate matters). However, the assistance provided is confined to procedural matters. There will be no legal advice or comments on the merits of the case. The increasing number of litigants in person not only presents a challenge to the courts, but the litigants in person likely feel at a great disadvantage and see the system as unjust.
Legal Aid in Hong Kong
One of the avenues that increases access to justice in Hong Kong is government sponsored legal aid. The Hong Kong 60
Government’s stated policy objective on legal aid is to ensure that no one with reasonable grounds for taking legal action in the Hong Kong courts is prevented from doing so because of a lack of means. The Legal Aid Department of Hong Kong (LAD) arranges legal representation by a solicitor and, if necessary, a barrister in civil and criminal proceedings. Legal aid is available for cases in the District Court, the Court of First Instance, the Court of Appeal and the Court of Final Appeal. It is also available for committal proceedings in the Magistrates’ Courts. The LAD operates two schemes – the Ordinary Legal Aid Scheme and the Supplementary Legal Aid Scheme. The Ordinary Legal Aid Scheme (OLAS) covers civil proceedings in the District Court and above. The types of cases include matrimonial cases, traffic accident claims, landlord and tenant disputes, claims in respect of contract, professional negligence, employees’ wages and severance pay involving interests of public justice. In 2012, the scope of OLAS was expanded to cover monetary claims in derivatives of securities, currency futures or other futures contracts when fraud, misrepresentation or deception was involved in respect of the sale.
Applicants under OLAS need to satisfy the means test, which examines the applicant’s financial resources. The Director of Legal Aid has a discretion to grant legal aid in criminal cases to an applicant whose financial resources exceed the means test if he is satisfied with the fact that it is desirable in the interests of justice to do so subject to payment of a contribution, if required. The Supplementary Legal Aid Scheme (SLAS) is a self-financing scheme. It provides legal assistance to persons whose financial resources exceed the limit under OLAS, but below a certain amount. The scheme was limited initially to claims for damages for personal and fatal injuries. It was subsequently extended to cover a wider range of claims, such as professional negligence claims, negligence claims against insurers, and representation for employees in appeals against awards made by the Labour Tribunal. The costs of the scheme are met from the Supplementary Legal Aid Fund, which is financed by the application fees payable by applicants, the interim contributions from aided persons, and the final contributions from a percentage deduction of the damages recovered in successful cases.
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“As the Chief Justice of the Court of Final Appeal, Mr Geoffrey Ma, once said, ‘The existence of pro bono services provides a ready yardstick to measure how seriously a society regards the constitutional right of access to justice.’ As lawyers, we are duty bound to ensure everyone is equal before the law.”
Pro bono in Hong Kong
No matter how generous our legal aid system, there are still legitimate legal needs that are unmet. This is where pro bono comes in. “Pro bono” is derived from the Latin phrase “for the public good”, where lawyers provide their services voluntarily and without pay. Pro bono is not meant to be a replacement for legal aid, but is an important element in facilitating access to justice. It is a long tradition that lawyers undertake pro bono work to help the underprivileged. Over the last few years, Hong Kong has seen a rise in the number of lawyers involved in pro bono work. However, compared to other jurisdictions such as Australia and the USA, the pro bono culture in Hong Kong still requires refinement. In the USA, the American Bar Association Model Rules provide for lawyers to aspire to complete at least 50 hours of pro bono work per year. The New York Bar even made it a mandatory requirement for prospective lawyers seeking admission to complete at least 50 hours of pro bono. The Law Society of Hong Kong actively encourages members to participate in pro bono activities. In 2010, the Pro Bono Committee was set up to review pro bono work undertaken by solicitors, promote public awareness
of pro bono services, and encourage participation by the profession in pro bono work. At present, the Law Society has organised different pro bono activities for its members, including providing free legal advice concerning building management issues, Duty Lawyer Service, provision of 45-minutes of free preliminary legal advice to the public by some law firms, and visiting secondary schools to share with students their legal knowledge on various topics. The Law Society also launched a “Free Legal Helpline” where a panel of solicitors offers legal advice to the public in the areas of personal injuries, matrimonial law, criminal law, and mediation. The helpline is well received by the public, and the Law Society has received more than 1,000 cases on average per year. To serve the younger generation, the Law Society hosts Teen Talk each year, where pro bono lawyers and trainee solicitors volunteer their services to lead more than 1,000 secondary school students to discuss important legal topics such as privacy and cybercrime. Through Teen Talk, it is hoped the younger generation will gain more exposure to the law and learn more about their legal rights.
Commitment and recognition
Although the incentive for lawyers to undertake pro bono work is surely not for an award, it is always important to show appreciation for hard work. Each year, the Hong Kong Law Society hosts the Pro Bono and Community Service Award Ceremony, where individuals are awarded for their commitment to pro bono and community work. The recognition scheme has been running for seven years, and there are more and more awardees each year. In 2016, awardees recorded more than 14,000 pro bono hours, which is a 55% increase from recorded hours in the previous year. Awardees have represented victims of human trafficking, asylum, sexual harassment, personal injury, among many other people in need. A record number of four law firms also received the Distinguished Pro Bono Law Firm Award. Each of them established policies and programs that encourage their colleagues to take part in pro bono work and make an impact on society. This year, a new award titled “Young Lawyer Special Award” will recognise young lawyers with five years of postqualification experience or below who have contributed at least 100 hours of service and performed with the highest number of service hours during the recognition period. It is important to encourage young lawyers to take part in pro bono practice, as it is beneficial to their professional development and beneficial to the community as a vital public service. The Hong Kong Government also recognises pro bono services provided by legal professionals for the community. The Home Affairs Bureau launched a Recognition Scheme for Provision of Pro Bono Legal Services to commend those who have made contributions and encourage more legal professionals to volunteer to provide free legal services to the public. More than 290 individual legal professionals and 22 law firms were awarded under the scheme in 2016. O C TOBER 2017 |
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“Under this sophisticated legal system, costs of legal services are generally high. At the same time … Hong Kong’s wealth gap has widened to a historic high, with the richest household now earning about 44 times what the poorest family earns … This inequality has resulted in the underprivileged being unable to afford expensive legal fees.” Free Legal Advice Scheme
The Duty Lawyer Service has a Free Legal Advice Scheme which provides one-off preliminary legal advice. There is no means test and all legal advice given to members of the public is from qualified lawyers. In 2016, the scheme processed more than 8,400 cases and advised more than 6,700 applicants. Although the scheme has good incentives and has provided assistance to numerous clients, it has received criticism for the lack of follow-up. Only a short period of time is allocated to the client. If a client does not fully understand the advice, it may just be wasted. Furthermore, the average wait time for a client to meet the volunteer lawyer is within eight weeks.
Challenges and the way forward Professional indemnity insurance
When a lawyer provides a pro bono service free of charge, they still carry professional liability to their clients. If there is professional negligence, lawyers are exposed to claims from their clients. Hong Kong has strict professional rules on liability insurance coverage. The current compulsory Professional Indemnity Scheme, set up in 1989 by the Law Society of Hong Kong, provides indemnity against loss arising from claims in respect of any descriptions of civil liability incurred by a solicitor in connection with his or her practice. At present, only law firms, and not individual lawyers, can obtain indemnity insurance. As a result, pro bono lawyers must seek their firm’s approval before offering free services in order to have indemnification protection. It is a breach of the Solicitors (Professional Indemnity) Rules for a solicitor to act without 62
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arising later on. Further reform is needed in this area.
Conclusion
Photo by Annie Spratt on Unsplash
indemnity insurance. Some may view that this creates a deterrent. However, indemnity insurance is essential for protecting public interest.
The “sandwich class”
The financial eligibility for legal aid has been adjusted over time. However, it has still received criticism for the fact that the limit remains low and fails to keep abreast of the inflation rate. As a result, a significant portion of the “sandwich class” is excluded. The increase in the number of litigants in person points to this conclusion.
Early legal advice
At present, legal aid focuses on representation. There is limited assistance available for individuals who wish to obtain legal advice at an earlier stage. They can resort to pro bono services and free legal advice for early legal advice, however much of it is one-off and clients only have limited time to discuss the matter with their lawyers. Legal advice at an early stage is important to prevent legal problems
Provision of legal aid and pro bono is an integral part of the administration of justice. Public administration of justice as one of the core values of Hong Kong. It is therefore imperative that measures are put in place to ensure that those requiring legal advice are able to access it. This premise is fundamental to a fair and democratic society. The Law Society of Hong Kong and other stakeholder organisations continue to monitor and, when necessary, advocate the need to increase the Financial Eligibility Limit of legal aid schemes and the need to expand the scope of legal aid to improve access to justice. On the other hand, the Law Society of Hong Kong also actively encourages its members to participate in pro bono activities. As the Chief Justice of the Court of Final Appeal, Mr Geoffrey Ma, once said, “The existence of pro bono services provides a ready yardstick to measure how seriously a society regards the constitutional right of access to justice.” As lawyers, we are duty bound to ensure everyone is equal before the law. Access to justice is fundamental to the rule of law and everyone deserves to be treated equally before the law. Let us contribute to upholding the rule of law by taking concrete steps to ensure no one is deprived of justice because of their lack of means. g MELISSA PANG MH JP is Vice President of the Law Society of Hong Kong and Executive Committee Member of LAWASIA.
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LEGAL PRACTICE
Build a bridge or die
The world as we know it is changing, and lawyers must learn to adapt – and adapt quickly – in order to survive the coming reality, writes PROFESSOR FRANK H. WU.
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“The challenge for lawyers is to keep pace. Whole areas of law have developed that did not exist a generation ago or which were dismissed. They are complex. Different norms have emerged.”
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hat is most important to our future as lawyers is our ability to build bridges. Lawyers serve many functions. Paramount among these is interpreter and translator. We take the stories and concerns of our clients – people not expert as we describe ourselves – and transform them in language and concept into rules and categories that courts enforce and legislatures adopt. What was messy and vernacular becomes organised and formal. Now we must interpret and translate more literally and more liberally. There are neither cases nor transactions that are restricted by borders; every matter has a principal, agent, supplier, vendor, partner, or consumer who speaks differently from everyone else involved. Solicitors and barristers will limit their careers and not well serve their clients by being provincial in outlook. We all wish for rule of law. Or we all say that we want rule of law. In the abstract, it is easy enough for people of every background, following any set of customs, to accept that a set of common principles must guide our interactions in order to enable shared prosperity. Whether we are trying to attract clients who are not like us, or are retained to
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fight adversaries who are not familiar to us, we have to learn how they think and anticipate how they will behave. Even within a nation, attitudes vary by region, and that is why the most intellectually and politically contentious of laws are those governing choice of law. They rank at the top of a hierarchy of rules – the very rules for determining which rules matter. The problem is that none of us is able to be perfectly neutral, free of our own bias, discussing law as if it had no cultural origin. Law is social. It is dynamic. The opportunity is globalisation. Trade moves in every direction. People could not have envisioned our current reality. Asia is ascendant. This essay introduces three arguments about how professionals can succeed, not only for themselves but also in promoting principles that can span the Pacific Ocean. First, the business of law is changing as technology and “big data” enable clients to demand that services be provided as if they were a commodity. Second, planning and the processes of dispute resolution favour predicability and efficiency. Third, our ability to adapt will determine how effective we are in a competitive marketplace.
The evolving business of law
The practice of law celebrates the past as few other professions do. Common law intrinsically is historical, following precedent whenever practicable. Be that as it may, everything else around us, from manufacturing to delivery of other services such as medical care, has been altered radically by innovation, especially the internet. The adjustments have almost always been difficult, even resisted, as, for example, artisans and craftspeople denounced the assembly line in the factory, unskilled labourers eventually also would lose their livelihood to robotic arms. Even those who invest in considerable training, such as physicians, are assisted by automation if they are not rendered obsolete. You can still pay a premium for bespoke goods and concierge consultancy, but only a few patrons are able to pay for even fewer artisans and experts able to command the fee. The business of law is also changing and lawyers are not exempt. Although they are skilled in rhetoric, no amount of cleverness will enable them to avoid competition. A computer cannot yet render a legal opinion that can be relied upon, but search engines can make analysis of doctrine and documents much more efficient. Algorithms can defeat champions of chess, and it is
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only a matter of time before they can beat human lawyers looking at complex situations in reality. The program need not be that overwhelming anyway to affect the average lawyer in her day-to-day duties. It only needs to be good enough to eliminate rote tasks, such as offering templates with limited choices. Administrative forms and the due diligence of assessing multitudes of contracts with repetitive terms can be started by machines, with only the ambiguities to be reviewed by humans. The machine is dedicated to routine, and a lawyer tempted to shrug off the loss of routine is not self-aware about the source of her income. It may be in the self-interest of members of the bar to maintain complexity only they can comprehend, but that is not optimal for their clients or society as a whole. The trends are toward simplicity. Jurisdictions that exhibit reduced regulatory burden are more attractive than those which do not. That need not mean laissez faire lack of rules. It implies legibility of rules. It is no accident that Shenzhen, China, is the latest seeming miracle of modernisation. Like its mirror image neighbour of Hong Kong, the combination of east and west through commerce and contracts has created a boomtown.
More profound than technology itself is the attitude it enables. Thanks to the information that can be accessed about law and lawyers, for free or at low cost, and the glut that puts power in the hands of those who demand rather than those who supply, law can be packaged as if it were a commodity. Units of professional service, such as the hour, can be priced as with any other item that is bought and sold. The purchaser of legal services who buys in bulk is a corporation. Even the most rationally-minded, high-net-worth individuals do not expend enough on lawyers to influence the conventions of billing. The in-house counsel of a major company, however, can force all but the star trial lawyer or top M&A deal-maker to bid against her rival and herself. The savvy client also can transfer the risk of the cost overrun (more time delving into obscure issues) or the outright loss to the lawyer. The client as a businessperson may be better in bargaining than the lawyer whose skills are more technical. The client solicits proposals from any who are competent. She selects what looks best. She evaluates after a suitable interval. She might request further discounts. The lawyer must meet the budget like any other vendor. She can lament all she wishes the loss of prestige.
The art of predictability and efficiency in resolving disputes
Predictability and efficiency are more desirable than their opposites, except on amusement park rides. The cost of legal compliance is the sum of the direct cost and the indirect cost of figuring out the direct cost. Worst is if the latter exceeds the former. Transnational arrangements and arguments make this apparent. Contracts and briefs in two languages do not quite double costs, but they multiply risks. Following or even leading the ongoing geographic expansion is legal expansion. The more that lawyers can facilitate the acquisition or the verdict in a place that is foreign to their principal, the more they become the value-add rather than the transaction cost. The lawyer capable of serving as the go-between, trusted by the home office and effective in the new territories, will be preferred. Otherwise, the businessperson will need three professionals: the lawyer who is their compatriot, the lawyer fluent in the dialect of the faraway place, and the go-between to boot. The trends toward unbundling, separating components of service and directing them to the better providers for each, have a counter-trend toward bundling, blending types of service if that is best. O C TOBER 2017  | 
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“There remains resistance among lawyers who are nostalgic for what they romanticise, a bygone era that never was. The next generation of practitioners is aware they must be open to all the possibilities. It is optimism about law, and lawyers, to observe that the only constant is change.”
They really are the same – the conceptualising of legal services as modules that can and increasingly will be “plug and play”. Lawyers are the natural professionals for this purpose. Their trade is in language. Engineers can build the literal bridge, but it would be a mistake of the literal-minded to suppose that what is necessary also is sufficient. Among the devices used by lawyers, alternative dispute resolution is becoming dominant. That should be expected. Arbitration, mediation and other forms of neutral intervention are becoming a substitute for litigation and a supplement to negotiation. Some have said these approaches are suited to Asian sensibilities. Regardless of whether that is so, the resulting compromises save face and preserve relationships, while avoiding conflict over rules.
Adapt or die ...
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if not the affliction – of perceiving more than a single side to the story. Those who are committed to a single master, who do not do their work in the public eye, can insist there is only one outcome that is right. The lawyer is aware that opposing counsel at least will disagree about what is just. Thus the lawyer ought to conceive of her role as wide-ranging. She is a counsellor and problem-solver, and law is but the means to an end. There are consultants available in every field, from economics to religion. A lawyer is a “fixer” with ethics. She can incorporate a bit, from psychology to literary interpretation. The challenge for lawyers is to keep pace. Whole areas of law have developed that did not exist a generation ago or which were dismissed. They are complex. Different norms have emerged. They are contradictory. Privacy law, for example, is a bona fide area of practice, not to mention an anxiety constant through the world and beyond, on the internet. The code – not computer code, but legal code – for drones and autonomous vehicles must be deliberated over and
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then set clearly. Intellectual property, and the potential represented by the first-mover in any endeavour, commands a higher price than real property, such is the advantage of the good idea. This all would have been nonsense until the moment it became obvious. Imagine the fool who quit his lucrative partnership in a top firm in order to join a social media start-up that purported to connect strangers to one another. The lawyer who can build bridges will be at the forefront. The standard continues to rise. Time was, a lawyer who could say “ni hao” and “xie xie” (“how do you do” and “thank you” in Mandarin) would be deemed bilingual. Today, she must pass the telephone test and write idiomatically. A lawyer with an undergraduate degree in a STEM (science, technology, engineering and maths) discipline could do more with numbers than her peers; the JD-PhD has become common.
The lawyer can be found – and there are clients looking for her – who knows Chinese, English, and German, with an advanced credential in a technical field. She is the person who can represent the leading companies or she is the one to run them. There remains resistance among lawyers who are nostalgic for what they romanticise, a bygone era that never was. The next generation of practitioners is aware they must be open to all the possibilities. It is optimism about law, and lawyers, to observe that the only constant is change. To embrace that is to fulfill the promise of the profession. g PROFESSOR FRANK H. WU is Distinguished Professor at the University of California Hastings College of Law in San Francisco. He previously served as Chancellor and Dean at the school, receiving unanimous renewal a�ter being voted the most in�luential dean in legal education in a national poll.
“Alternative dispute resolution is becoming dominant. That should be expected. Arbitration, mediation and other forms of neutral intervention are becoming a substitute for litigation and a supplement to negotiation. Some have said these approaches are suited to Asian sensibilities.”
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LIMITLESS
CAREER | WELLNESS | TRAVEL
Boss
or
leader Is there really a difference?
The key to good leadership is that, as well as being likeable and sometimes even lovable, leaders aren’t afraid to make hard calls. However, not all bosses are leaders, writes career coach FIONA CRAIG.
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he word “boss” invokes many and varied feelings. In some people it might invoke fear, in others respect. For me, the word conjures images of a 1950s Mad Men-style office environment – a middle-aged man sits in an office with a large desk and leather chair, surrounded by secretaries. In recent years, there have been a variety of campaigns aimed at shifting this image, along with the negative connotations associated with the word “bossy”, particularly in relation to girls and women. I’m referring to the Sheryl Sandberg “Ban Bossy” campaign and the #GirlBoss hashtag started by entrepreneur Sophia Amoruso. Boss is a word ingrained in our corporate culture, a hierarchical term that allows us to work out how people are positioned in an organisation. Yet the rise in awareness of the importance of strong corporate leadership means that, increasingly, employees want to work for a leader and not just a boss. What are the key differences between a boss and a leader? While we may all have our own ideas about this,
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there are some recurring themes to examine.
individuals get the credit they deserve for the work they do.
A boss DICTATES, a leader INSPIRES
A boss leads from EGO, a leader leads from VALUES
Command and control leadership is still alive and well in many organisations. There are times when it might be necessary, but most of the time intelligent people don’t like to be dictated to. Inspirational leadership is all about helping team members grow and develop skills and contacts.
A boss TELLS, a leader SHOWS
Good leaders walk their talk and wouldn’t ask their teams to do anything they wouldn’t do themselves. They teach by showing the way, mentoring and coaching as required.
A boss TAKES CREDIT, a leader GIVES CREDIT
Many of us have been in the situation where we’ve worked hard on something, only to watch more senior team members take all the credit for our success. A good leader will make sure
There’s nothing worse than a boss who refuses to admit when they are wrong, or that they don’t know all the answers. Ego often gets in the way for bosses, whereas strong leaders work from a value base that is clear to their team. When team and leadership values are clear and unambiguous, everyone knows where they stand, and what is expected of them.
A boss is ABOVE, a leader is IN FRONT
We all want to be led – however, a good leader leads from the front, not from above. They show the way, like the Pied Piper, creating a shared vision and destination that everyone buys into, even during the tough times.
A boss COMPETES with you, a leader SPONSORS you Protectionism is a trait often associated with a hierarchical
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C AREER | LIMITLESS
DEAR FIONA
STEP 3: FRAME IT
You’ve already done this. The key to moving out of any career rut is to recognise that you’re in one. Working long hours in a highpressure environment often means you don’t stop to get your head up from your desk and look around. You exist from day to day, hanging out for the weekend and holidays. When you do get time off the last thing you want to do is think about your job and/or career. But it’s essential to regularly take time out from working IN your career to work ON your career.
STEP 2: IDENTIFY THE CAUSE
The next thing you need to do is work out why you’re in a rut, as this will help you understand how to move forward. Career Wheel
Rewa rd
ture Cul
nition Activity cog Re
FIONA CRAIG is a former corporate lawyer and is now an executive coach and trainer who thrives on connecting people in business and inspiring them to build brilliance in their career and life. Connect with Fiona at www.fionacraig.com.au or www.linkedin.com/in/fionacraig
STEP 1: CALL IT
0
nal Persowth Gro
Sir Richard Branson is one of the most obvious who springs to mind. Branson is charming, witty and humble. For all his success he remains extremely likeable and has a loyal fan base in business. Compare that with US President Donald Trump, who succeeded in the election despite exuding arrogance, ignorance and a lack of empathy and understanding. You could not ask for two more different approaches. I know which of these two business leaders I’d rather invite for dinner. The key to good leadership is that, as well as being likeable – even lovable – leaders aren’t afraid to make hard calls and decisions. They understand that not everything they do will be popular, but they manage to do it in a way that shows respect and compassion for the people it impacts. So, now you know the main differences between a boss and a leader, let me ask – which one are you? On some days you might be the boss and that might feel like the most effective way to get things done. I encourage you to step down from the boss mantel and think about who you need to be and how you need to behave to be a good leader instead. Your team will notice the difference. I believe you will feel it, too. g
For each segment, think about where you are right now on a scale of 0-10 (0 being it couldn’t be worse; 10 being it couldn’t be better). Then mark each segment (0 in the middle, 10 being the outer circle) with where you sit (so 5 would be halfway across the segment). Finally, draw line between the mark on each segment and see how stable or rocky your ride is going to be on this career wheel. This exercise allows you to pinpoint the areas in your career that are lacking and need attention, which in turn allows you to make a plan on how you will fix the gaps and move out of the rut.
Streng ths
Great corporate leaders who exude likeability
Dear Sheri, Firstly, well done on taking the initiative and knowing that you need to be the one driving your career. That’s the most important lesson you can learn at any job. Continuing personal and professional growth is an essential part of a successful, rewarding and fulfilling career. There will be many times in the course of your career that you might feel you’ve hit a ceiling in terms of learning and development and/or enjoyment of your job. That’s perfectly normal. Here are my suggestions on what to do when you find yourself in a career rut.
Pro f. De v.
m Tea
approach to leadership. Unfortunately, protectionism often results in competition. I’ve coached many lawyers who tell me they feel they are in the shadow of their boss and can’t progress their career as a result. In a law firm environment, it’s sometimes tricky to avoid this situation, given the billing and remuneration systems. However, the best leaders are able to protect themselves, while actively sponsoring others through the ranks.
I’ve been in the same job for three years now and lately I’ve noticed I’m not learning anything new. I have tried asking my managers for new projects and suggested ways to revitalise my work. Although they seem positive about my suggestions, none seem to get through. What can I do to move out of this career rut? Sheri
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An easy way to do this is to use the Career Wheel (above). Think of each segment of the wheel as a part of your career (I have named them, but you can change them to anything you like).
This makes any discussion with your manager much easier, because you have a “why” to discuss – not just a “what”. In your case, Sheri, imagine the issue is that you’re not able to use your strengths as much as you would like. You might be excellent with clients, but the projects you have worked on have kept you hidden away, tied to your desk. Knowing this is the issue allows you to address it more specifically and to request access to projects with more client contact. Letting your managers know why you want something will always be more powerful than just saying what you want.
STEP 4: SELL IT
When you decide what action you will take and you need the support of managers or stakeholders, remember one phrase when making your case: WIFT stands for “what’s in it for them?” Make sure your argument as to why they should invest their time/money/ loyalty in you includes a strong thread of what the investment will do for the business, and perhaps even them personally. You’re much more likely to get buy-in if you present a wellrounded argument rather than a “me, me, me attitude”. Good luck with moving beyond your career rut. You can do it!
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CULTURE
Why cultural intelligence matters Understanding and adapting to local culture and business practices is critical for anyone working in cross-cultural situations, writes LOUISE DUNN.
Photo by Saulo Mohana on Unsplash
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cross Asia, the need for knowledge-based services is expanding exponentially. With the region’s burgeoning middle class set to grow from 500 million today to 3.2 billion by 2030, the total market for legal services is growing quickly. However, these opportunities are not without challenges. Research commissioned by Austrade and undertaken by Asialink Business in 2016 looked at the capabilities lawyers need to succeed in the region. The Growing Knowledge Economies study considered opportunities available to legal and management consulting firms in four key markets – Indonesia, Singapore, Japan and Korea. Of more than 30 senior legal executives interviewed for the research, 70% indicated that understanding and adapting to local culture and business practices was critical to success. Legal practitioners identified strong cultural awareness and “cultural intelligence” as an essential skill for everything from managing staff to winning new clients.
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With cultural awareness skills so critical, what considerations do legal professionals wanting to practice in Asia or engage with Asian-profile clients need to take into account, and how can they best build these skills?
The cultural iceberg: understanding culture and cultural intelligence
While there are many different theories and approaches to understanding culture, one popular metaphor is to view culture as an iceberg. Like an iceberg, only the tip of any culture is easily visible, while much more lies hidden beyond view. Just as ships have a habit of crashing into icebergs, people in culturally diverse situations can be at cross purposes if they don’t take time to understand what is going on beneath the surface. In essence, cultural intelligence is about considering not only the tip of the iceberg – the visible 10% – but the other 90% beyond what is initially obvious. It involves the ability to reflect on your own behaviour and consider how to function effectively in a culturally
diverse situation, and gather knowledge and acquire skills before acting in a new situation. Organisations and individuals that take the time to invest in building their cultural intelligence skills are better able to understand how their own workplace style is likely to be interpreted by others, and put strategies in place to build confidence and effectiveness in working with diverse colleagues, clients and cultures.
The importance of relationships
Legal practitioners interviewed in the Growing Knowledge Economies report consistently emphasised the importance of establishing and nurturing crosscultural business relationships. Many Asian cultures, for example, tend to invest significant time in building trusted personal relationships before or while focusing on the business matter at hand. In many instances, when establishing a new relationship with a client, it is necessary to take time to attend social functions such as banquets, dinners, or even karaoke,
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C AREER
as well as to answer questions about family and personal life. For legal professionals working across cultures, it is important to recognise the importance of relationships and take steps to build long-lasting ones. This can be extra challenging (but remains vital) when working in a virtual or online environment, such as managing a cross-cultural team that is located across various countries, or liaising with a client primarily using online communication.
Working across cultures: three steps for building cultural intelligence
How can you build your cultural intelligence and help ensure your relationships with partners and clients have the best possible start? A useful approach is to break the process for building cultural intelligence down into three stages. Awareness: This involves understanding your own cultural profile and preferences, your values, beliefs and assumptions, how this profile may overlap with and differ from other cultures, and how it may affect your behaviour and interactions. Knowledge: Once you have developed an understanding of your own cultural profile and preferred work style, what strategies might you want to put in place to recognise and work cross culturally? Skills: How do you successfully apply your cultural awareness and knowledge when interacting with culturally diverse people, be they business partners, clients, employees, suppliers or colleagues? To give an example, one of the fundamental differences between some Asian cultures is communication style. Professionals from many nonAsian nations often prefer direct and explicit communication, with a strong preference to get straight to the task at hand and obtain direct feedback. This contrasts with the communication style of many Asian cultures, where there is a preference for indirect communications, a stronger focus on
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Building cultural intelligence
AWARENESS
Make time to understand cultural differences
How to boost your cross-cultural relationships
RESPECT
Be respectful of hierarchy
SKILLS
Learn local business etiquette
building relationships, the need to uphold “face�, and a preference for less direct feedback. When establishing communication with a new client or partner, taking yourself through these three phases – awareness, knowledge and skills – can help you to be more cross-culturally effective, help maximise opportunities, and avoid misunderstandings. Obviously, there is no one blueprint for success. However, with the opportunities for international lawyers in Asia, and with the profile of Asian clients internationally set to expand even further, taking time to develop cultural intelligence skills can help these opportunities prove as rewarding as possible. LOUISE DUNN is Director of Capability Development at Asialink Business, Australia's National Centre for Asia Capability. Learn more about Asialink Business at: asialinkbusiness.com.au
Make time to understand and critique cultural differences and invest time into building your personal awareness, knowledge and skills in working in culturally diverse situations. Appreciate differences in communication styles (direct vs indirect, low vs high context). Be ready to share information about yourself and your level of responsibility within your organisation. Be open to social invitations (to dinners etc) as these are vital for building trusted relationships. When organising meetings (be they face to face or virtual), allow plenty of time for small talk. Be patient and don't expect meetings to start (or run) on time in all instances. Be respectful of hierarchy. Know how to conduct yourself appropriately in a business meeting and take time to familiarise yourself with local business etiquette, which are often different from culture to culture.
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TIME MANAGEMENT
Why you really should
eat the frog Under pressure? THEA O’CONNOR has these suggestions to improve how you manage your time.
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o you ever get to the end of the day and feel you haven’t achieved anything? The truth is you probably did accomplish quite a few items on your todo list, but one remains untouched. It’s the important but hard thing you know you need to do, but didn’t go near. It sits in the back of your mind, casting a shadow over your other achievements. A common piece of productivity advice is to do as Mark Twain once suggested: “Eat a live frog first thing in the morning and nothing worse will happen to you the rest of the day.” This saying inspired the title of a time-management book, Eat That Frog, by Brian Tracy. He claims that developing the habit of tackling your hardest, most challenging task first thing each morning is key to becoming a high performer. Here’s why.
Morning is best for mental alertness
According to sleep science and Chinese medicine, our mental alertness peaks at about 9 to 10 am. This varies slightly according to what time you rise. “Tasks that require a high degree of accuracy and discrimination are best done in the early part of the day,” says sleep researcher Professor Leon Lack, from Flinders University. “That’s when our alertness and accuracy are highest, due in part to overnight rest and a peak in the level of the hormone cortisol.” 74
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Willpower declines over the day
One of the most replicated findings about willpower is that we have only so much of it, and it decreases over the course of the day. We use it up making decisions, managing emotional reactions, and exercising self-control to make ourselves do the tasks we need to. Any act of self-control leaves us with less willpower for completely unrelated challenges. This seemingly accounts for the “morning morality” effect, where ethical behaviour is highest in the morning and lowest in the afternoon, when people are tired and their mental resolve weak. So, the longer you put off eating your frog, the fewer reserves you’ll have to help you buckle down.
You start the day with a win
You will feel fantastic when you accomplish your most critical work by mid-morning. An added bonus is that when we achieve small wins, our pre-frontal cortex – the area of the brain that we use for willpower – will begin firing neurons. When it does this, it increases our capacity for focus and perseverance.
What if you hate mornings?
The good news is that we have two peaks in alertness, with a second occurring later in the day. Once the afternoon slump passes, alertness rises again at 5 to 6pm, according to Professor Lack. This is when our core body temperature and muscle strength peak, cognitive processes improve, and verbal activity is more prolific. “But we sacrifice accuracy for speed at this time,” says Lack. “So make sure you check your work the next morning.”
How to stop procastinating
According to Stanford health psychologist Dr Kelly McGonigal, meditation and physical exercise increase willpower. Both habits lead to structural changes in the brain that support self-control. For example, one small study found that after two months of exercising three times a week at the gym, all participants procrastinated less, and had an increased ability to persevere and resist temptation.
Practical tips •
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Before you leave the office at the end of the day, choose your most challenging or important task for tomorrow. Write it down so you’ll see it first thing. Gather together the material you’ll need to get it done. Read a bit of material beforehand to allow some back-burner thinking over night. In the morning, put in place some distraction-minimisation measures if needed and let your colleagues know when you will next be available. g
THEA O’CONNOR is a freelance writer, coach and presenter focused on the intersection of health and business. She specialises in identifying ways to create healthy and productive work habits. thea.com.au
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SLEEP
How much sleep do I need? 7–9 hours Results of a multi-year study by the National Sleep Foundation for adults aged 26-64
Sleep your way to success Cutting back on sleep as a way to fit more work into your day may hinder rather than help your performance. THEA O’CONNOR reports.
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he notion of “sleeping your way to the top” probably raises negative images: workplace sex scandals, unscrupulous bosses and compromised workers. Taken literally, however, it actually offers sound advice for advancing your career. We’ve known for decades that sleep deprivation, especially fewer than six hours per night, undermines health and leads to dangerous accidents in bluecollar work environments. But what about the cumulative effects of smaller amounts of sleep loss on white-collar professionals? Although many executives don’t see a connection between lack of sleep and their performance – 46 % of business
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leaders surveyed by McKinsey & Company didn’t (McKinsey Quarterly, February 2016) – the evidence tells a different story. Emerging research shows measurable deficits in workplace performance from skimping on sleep. In some cases, foregoing even one or two hours of sleep has a noticeable effect. However, tired workers simply don’t realise how compromised they are, because sleep deprived people are poor judges of their own performance. To help wake you up to the importance of sleep, here are some findings that examine the effect of sleep loss on some key performancerelated skills.
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Influencing others
Positively influencing others is important for leaders. According to research conducted by Christopher Barnes (University of Washington, US), which was published in the August 2016 Journal of Applied Psychology, tired leaders are less charismatic than those who get a good night’s rest. Leaders who had their sleep interrupted over the course of a night were rated as significantly less inspiring and motivating the next day than their well-slept counterparts.
Effective communication
The ability to tune in and “read� what another person is feeling plays a critical role in effective communication – as does the ability to manage your own emotions so you don’t react without thought when triggered. These are the foundational skills of emotional intelligence (EI), which are gaining increasing importance in the workplace, including finding that positive moods result in increased productivity. Research indicates that lack of sleep shatters your EI. Even just a few nights of only five hours of sleep can put you in a bad mood, make you less empathetic and less able to accurately identify the facial expressions of others (“Sleep Deprivation Impairs the Accurate Recognition of Human Emotions�, Sleep, March 2010). This leaves you prone to misinterpret their cues and more likely to express your feelings in a negative tone. You couldn’t create a better recipe for conflict.
Integrity
Ethical behavior in the workplace is crucial to an organisation’s brand and image; misconduct can be tweeted around the world within minutes. The moral code of leaders and employees isn’t the only factor that determines whether they will resist temptation. It also depends on their
energy levels. Good – but tired – people do bad things according to Barnes’ 2011 research, which concluded that fatigue is the enemy of virtue. The study found that small amounts of sleep reduction were strongly associated with a greater incidence of cheating in the workplace. The author surmised that lack of sleep resulted in reduced self-control, which is needed to resist temptation. In the study, honest participants averaged less than eight hours of sleep per night, while cheaters averaged seven-and-a-half hours sleep – only 22 minutes of sleep separated the moral from the weak.
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5 ways to better sleep STICK TO A REGULAR BEDTIME. Even on weekends.
Delivering results
Achieving results in a busy work environment requires keeping an eye on your priorities. You need to discern what’s important, what’s not and to filter out the many irrelevant distractions that come your way during a typical working day. Some studies are finding that sleep deprivation can impair the ability to focus on specific information while blocking out other incoming data. Jotting down your to-do list for the next day before you leave work in the evening can help you relax. Turning off digital devices (including your phone) 30 minutes to an hour before bed can really help. Invest in an alarm clock so you can avoid using your phone for this. It will also help mitigate temptations to read messages. Remember that light from the screens can reset your body’s circadian rhythm, making it harder to fall asleep. Together with the long-established findings about the need for sufficient hours of sleep in order to pay attention, learn new material and recall it, it’s pretty clear why those night-time hours of shut-eye are crucially important for your career. So the next time you find yourself thinking that a couple of hours less sleep will help you get ahead, think again.
AVOID ALCOHOL AND CAFFEINE. A glass of wine or beer might evoke an initial feeling of drowsiness, but it tends to impede sleep. Experts suggest avoiding alcohol at least three hours before heading to bed. And remember that caffeine lurks in many unexpected places, from chocolate to pain relievers.
EXERCISE DAILY.
Make sure you finish exercising at least four hours before going to bed.
EAT DINNER EARLIER.
It takes three to four hours to digest food. Heavy, rich meals can cause indigestion and heartburn, making it even harder to fall asleep.
FOLLOW A ROUTINE.
Create a relaxing wind-down ritual before sleeping, such as a bath or shower, listening to relaxing music or meditating.
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PSYCHE
Mindfulness:
Venturing beyond the buzzword What you do with the few seconds between an event and your response to it can be the difference between a bad reaction and a positive result. PAUL PHILLIPS explains how mindfulness can help you learn to focus on what really matters.
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e have all read or heard about the wonders of mindfulness – the calm, focused state of curiosity where inner and outer distractions seem to drop away. But how can you incorporate it into your busy working life? Having practised and taught mindfulness for more than a decade, the trick is to build it into daily or neardaily activities. Do not count on getting a spare half hour to sit and navel gaze. Chances are it won’t happen. Instead, you need to focus on the differences in every day conscious experiences. For example, consider how a car feels when accelerating or braking and things are changing, compared to how it feels at cruising speed. One thing most of us do every day is take a shower. Instead of just cleaning yourself physically, make it a mental process as well. There are many sensory
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opportunities in the shower to test out your mindfulness. First, notice the temperature. Where do you feel it on your body? Does the water make your head and shoulders the same temperature? How far down your body does the temperature go before it feels different to your head? Does the water feel the same hitting your head as hitting your feet? Can you feel the individual droplets striking your back or does it just feel wet? Move your head slowly and notice how the sound of the water hitting you changes. When does it change from the thump on your head to the splash on your ear or shoulder? After your shower, how do you get dressed? Do you put on both socks then
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“Do not count on getting a spare half hour to sit and navel gaze. Chances are it won’t happen.�
your shoes or, go sock shoe, sock shoe? Switch from your normal routine. How different does it feels the other way? Do you button your shirt up from the bottom or down from the top? Again, simply by switching it to the other way you create a difference. Now think about eating. Select something that tastes different with each bite – perhaps sushi, tapas or fruit salad. Each mouthful of food should have a different texture, taste and moisture content. Are you aware of the differences? Do you notice how the texture changes as you chew? Or how the temperature changes while it is in your mouth? Do you notice that each
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prawn actually tastes different? Or when you eat chocolate how it changes from a solid to that smooth, velvety feeling in your mouth? What about when you eat chips, do you feel or hear the crunch more? Which one do you experience first? Each time you draw your attention to the difference or the changes, you are being mindful. Being aware of how the conscious experience changes is mindfulness. The more you practise everyday mindfulness activities, the more you will notice when you are being mindless. You will notice when individual and unique things blend into shorthand rather than a full experience. In simple terms, you will experience prawn flavour in all the prawns, rather than each individual prawn’s flavour. These daily tricks of mindfulness allow you to function better in your job. How? If you take the moments while having your shower, getting dressed and eating, you will build your mindfulness muscle. This way you can really focus on the meeting you are in, rather than your last phone call; focus on the brief in front of you, rather than a work conflict. What you focus on is unimportant. The act of focusing and experiencing changes is what matters. PAUL PHILLIPS, PhD, is a registered occupational therapist, psychologist and academic . O C TOBER 2017
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DREAM DESTINATION
Spirited away Luxury lovers can now explore Japan’s most sacred landscapes in style, writes UTE JUNKER.
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here are said to be around 90,000 Shinto shrines in Japan, but few are as lovely as Kamikura Jinja. Located in a centuries-old cedar forest, this shrine exerts a sense of tranquillity long before you actually reach it. The approach winds its way uphill along a tree-shaded path clearly designed to be taken slowly, with more than 200 vertigo-inducing steps. By the time you reach the small hilltop shrine, with its views out to the ocean, it is hard not to feel at one with nature. This peaceful shrine sits on the ancient pilgrim trails of Kumano Kodo, which criss-cross the forests of southern Honshu. The Japanese consider this area to be the spiritual heart of the country. Centuries ago, Kyoto’s emperors would come here to purify themselves, walking from one forest shrine to the next, submerging themselves in icy mountain streams and offering up prayers to the spirits dwelling in the rocks and trees. The area is popular with Japanese holidaymakers but, until recently, was largely ignored by foreigners. That changed last year, when Aman Resorts opened a hot spring resort on the Kii Peninsula. Set inside the IseShima National Park, the resort is designed as a contemplative space where visitors can be rejuvenated through close contact with nature, not to mention a healthy dose of Aman luxury. Many visitors will want to head straight for the resort’s extraordinary 2000 square metre spa. The spa menu, which features nature-inspired treatments, changes with the seasons. Depending on what time of year you come, you may enjoy a foot scrub of wasabi and crushed pearls, or a
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massage with green tea and neroli oil. The heart of the spa complex, however, is the large open-air pool filled with hot spring water. Amanemu’s spa gives Japan’s time-honoured onsen culture a five-star twist. When you tire of soaking in the thermal waters, there are sink-into day beds and shaded pavilions in which to recline, as well as an outdoor fireplace for those slightly cooler days. In a nod to international customs – and in contrast with Japanese tradition – swimsuits are obligatory. However, if you prefer an au naturel bathing experience, there is good news: the mineral-laced waters are pumped directly into the resort’s 24 guest suites and two-bedroom villas. Each of the square black basalt tubs has a third tap from which thermal water pours out. Be aware that the water comes out at a superheated 60 degrees; you will need to add some cold water – and perhaps some of the bath salts scented with hinoki cypress wood – before climbing in for a blissful soak. A sense of place is essential to every Aman resort and architect Kerry Hill, an Aman favourite, channelled traditional Japanese design principles
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T R AV E L | L I M I T L E S S
The perfect place for contemplation – the outdoor terrace in the two-bedroom Sora Villa at Aman Resorts’ new hot spring retreat on the Kii Peninsula, south of Tokyo.
A procession at the Ise Grand Shrine which is 30 minutes from the resort.
to create Amanemu. The generously-sized, lowslung suites open onto decks with sea views on one side, and courtyard gardens of bamboo and stone on the other. Sliding screens replace doors, and the simple but luxuriously furnished interiors feature gleaming wood and woven textiles. An astonishing 10,000 saplings were planted on the site, allowing the resort to change its mood to reflect the seasons. Local specialties are showcased in both the resort’s restaurant and bar, located in twin pavilions overlooking the bay. In the bar, that means everything from prestigious Japanese whiskies and sakes to teas. In the restaurant, look for dishes featuring spiny lobster, plump oysters, or heavily marbled Matsusaka wagyu beef. When the weather allows, meals can be served in the sunken outdoor terraces, built around fire pits. If you can tear yourself away from the delights of doing nothing, there is much to explore in the area, and a fleet of black limousines standing by to ferry you around. The activities range from a round of golf on the neighbouring 18-hole golf course to excursions into the area’s spiritual side. Trek some of the Kumano Kodo paths, or visit Japan’s most sacred Shinto site, Ise Grand Shrine, a collection of more than 125 separate shrines scattered over more than 5000 hectares. Other memorable activities include the opportunity to feast on sashimi caught by your own hand. Head out with an expert angler and cast off, either from the shore or out in the open water; whatever you catch will be prepared for your next meal by Amanemu’s chefs. Or you could just leave it to the experts. The area’s most unusual inhabitants are the Ama female free divers. In a tradition stretching back 2000 years, these women – some of them well over 60 – harvest clams and abalone, scallops and fish, by diving down to depths of 10 metres. Unlike their ancestors, who wore nothing but white loincloths, today’s divers don wetsuits and masks. Aside from that, however, they use no equipment. A lunch with these lively women, enjoying freshly-grilled seafood that they brought up from the depths, is a feast for all the senses. g O C TOBER 2017 |
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CITY GUIDE
Tokyo A unique mix of the ultra-modern and the traditional, the world’s most populated metropolis is home to more than 37 million people, according to the United Nations. Tokyo is a city that combines cherry blossoms and shrines with neon-lit skyscrapers and futuristic robot theatre. Beer-dispensing vending machines, heated toilet seats and streets of anime-themed shops are all part of the fun. Dive in wide-eyed with this guide by KATE ALLMAN.
Eat
Toss aside that prepackaged California roll and taste sushi that is almost still swimming. Tokyo restaurants settle for only the freshest fish, which is hauled off boats, filleted and sold daily at Tokyo’s Tsukiji Fish Market, a five-minute stroll from Tsukiji Station. Try a bowl of maguro don (tuna on rice) at any bar in Tsukiji’s outer market for freshness that redefines sushi (about 900 yen or A$10). For a pricier meal, head to three-Michelin-starred Sukiyabashi Jiro (tasting menu is 30,000 yen or A$350), where Japanese Prime Minister Shinzo Abe took US President Barack Obama to dine during Obama’s April 2014 visit to the city. Tokyo has more Michelin-starred restaurants than any city in the world, but you can also find delicious cuisine in many red lantern–lit izakaya (pubs) serving yakiniku (barbequed meats), tempura (deep-fried vegetables and prawns), nabe (hot pots) and don (rice bowls) for about A$10 including rice and miso soup. Try cook-your-own okonomiyaki – a Japanese savoury pancake made from flour, egg, cabbage and any other ingredients you choose (in Japanese, okono means “how you like”). Finally, hop off the metro at Tokyo Station and follow the signs to Ramen Street in the underground shopping plaza of First Avenue Tokyo Station. This is the best place to try Japan’s take on Chinese noodle soup, topped with delicious slow-cooked pork that could fall apart with a hard stare (about $A12 for a bowl). Don’t be intimidated by the lines – locals slurp these noodles down quick and you’ll be seated before you can say oishii (yum).
Tokyo cityscape, tower and skyscrapers.
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The first place to come alive in Tokyo each morning is the hectic Tsukiji Fish Market. It’s free to visit, and you can watch restaurant owners clamouring for the freshest catch of almost every type of seafood imaginable, including huge tuna, which are sold at raucous auctions from 5am each morning. Entry to the tuna auctions is on a first-come, first-served basis, and numbers are limited to 120 visitors each morning – so you’ll need to line up by 4.30am. If you prefer to sleep in, you can still see all kinds of fish, octopus, crustaceans and even fugu (poisonous blowfish that are a delicacy in Japan) being sliced and iced until about 9.30am. Afterwards, if you can stomach it, join the locals for a fresh sushi breakfast. For a more relaxing activity, stroll through the huge torii gate – the largest in Japan – and around the serene gardens at the Meiji Jingu shrine. It is impossible to not feel humbled by the 20-metre-tall oaks and Japanese cypress trees that blanket this quiet sanctuary in the centre of such a busy city. Stop by the Samurai Museum in Shinjuku to experience Edo (the former name for Tokyo) history, view a samurai sword show and try on 30-kilogram pieces of armour. Contrast this with a taste of Japanese “geek” culture at the hilarious Robot Restaurant, also in Shinjuku. The food at this “restaurant” is really an afterthought (eat before you go), with the main attraction being an exotic show of neon-lit robots fighting women in spiky gold spandex to the beat of pounding Japanese rave music. Book through japanican.com for a discounted rate of 6800 yen (A$800) and prepare for a bizarre night.
Stay
The five-star Capitol Hotel Tokyu is a luxurious base from which to explore the city, and is well located in central Tokyo, above a subway station with four metro lines. Designed by Kengo Kuma, the architect who designed the 2020 Olympic Stadium, the hotel’s suites feature floor-to-ceiling windows with great views of the city. Half of them overlook the Japanese Prime Minister’s office – marked by a helipad on the roof. A modern fitness centre, lap pool, spa and three gourmet restaurants make it easy to spend a large portion of your Tokyo visit within the hotel, but a stroll across the road to the buzzing restaurant district of Akasaka is well worth the effort. Rooms start at 43,000 yen (A$510) per night. Occupying the top 14 floors of the 52-storey Shinjuku Park Tower, the Park Hyatt is a favourite for sophisticated travellers. The building soars above the neon lights of Shinjuku – the Tokyo equivalent of New York’s Times Square – and you can see Mount Fuji from the rooms on a clear day. Each guest room is a lavish blend of marble, granite, glass and free Nespresso coffee and will set you back about 32,000 yen (A$360) per night.
Drink
First-time visitors will be entertained by the futuristic vending machines that dot Tokyo’s streets. For about 100 yen ($A1.20), you can buy hot and cold beverages in cans that increase or decrease in temperature the more you shake them. A red price label means hot, while blue signifies a cold drink, so take care when preparing to quench your thirst with an iced tea. Beers are another surprise that pop out of vending machines for just a few hundred yen. However, if you prefer to drink indoors for around the same price, duck into one of the tiny bars in the Golden Gai, an area outside the western exit of Shinjuku Station that inspired the sci-fi scenery of Ridley Scott’s Blade Runner. More than 200 bars are housed in six narrow alleys that are no more than a couple of metres wide. It’s a nostalgic part of old Tokyo that has miraculously survived earthquakes, war and gentrification. For a terrific view of the city, head to New York Grill on the 52nd floor of the Park Hyatt hotel, where Bill Murray met Scarlett Johansson in Lost in Translation. Drinks are pricey (A$25 for a cocktail) but the sunset views are priceless. Just make sure you leave before 8pm (or 7pm on Sundays) if you want to avoid the 2,500 yen (A$28) cover charge.
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See
Insider tip Ann Cheung, an Associate in the Tokyo o�fice of DLA Piper, o�fers these tips for visitors to Tokyo: “The Yomiuri Giants are the most (in)famous baseball team in Japan, and they play their home games at the Tokyo Dome. Whether you are a baseball fan or not, attending a Giants game is a good way to experience the amazing devotion and discipline of Japanese fans at a sporting event.” “There are many themed restaurants in Tokyo and the Ninja Restaurant is my favourite. Ninjas escort you through winding wooden corridors and staircases that resemble the interior of an ancient Japanese castle. Other ninjas sneak up with drinks, food and magic tricks. Make a reservation in advance and order the Zeitaku (luxury) course. Tokyo also has some great cra�t beer establishments and my friends and I enjoy the Devil Cra�t, the Goodbeer Faucets and the Taproom.”
The 634-metre Tokyo Skytree is the second tallest building in the world after Dubai’s Burj Khalifa. While this claim to fame is a slight misnomer, as the main observation deck is just 350 metres high, the tower offers views of the city’s east as well as a walk over a terrifying glass deck for about 2,000 yen (A$24). However, for an even more impressive night view of central Tokyo, including the incredible neon-lit Skytree, head to the observation deck in Roppongi Hills Mori Tower for the same price. As a free alternative, the 45th floor of the Tokyo Metropolitan Government Building (also known as Tocho) has two 202-metre-high observation decks with views north and south of the city.
Tokyo Dome stadium in Bunkyo, Tokyo.
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Shop
Mitzukoshi is Japan’s answer to the English chain Harrods – a 17th-century kimono shop that was forced to modernise when department stores became popular in the 1900s. Its flagship store is in the central Tokyo suburb of Nihonbashi, where 16 floors offer merchandise from well-known designer brands. But shoppers be warned – even prices for non-designer items are far steeper in Tokyo than other cities around the world (including Sydney). The best bargains can be found in Mitzukoshi’s two-storey basement food hall, which features a world of fresh sushi, salads, stir-fries and anpan (Japanese pastries filled with sweetened beans). Ginza and Shibuya are the main shopping suburbs in Tokyo, with names such as Ralph Lauren, Coach, Chanel, Hugo Boss and Dior crowding the tree-lined avenue of Omotesando in Shibuya. Even if you aren’t buying, it’s a lovely place to walk around, particularly at sunset when the Prada building lights up from within its diamond-shaped glass panes. Japanese designer Issey Miyake sells the popular “Pleats Please” range from his store across the road, as well as the coveted Bao Bao bag for about A$900. The only rock-bottom giveaways in Tokyo are reserved for electronics and can be found in the Akihabara district, where the streets crawl with cheap laptops, phones, camera accessories and other gadgets. A 128 GB micro SD card that can cost A$80 in Australia sells for the equivalent of A$7 here. g
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AJ_HO
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LAWASIA
NEWS | EVENTS | ADVOCACY
LAWASIA Since its inception in 1966, LAWASIA has fought for the rule of law, protected human rights, and expanded business opportunities across the Asia Pacific.
Member Jurisdictions
Afghanistan Australia Bangladesh Cambodia China England & Wales 86
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Fiji Germany Hong Kong India Indonesia Israel
Japan Korea Macao Malaysia Nepal New Zealand
Pakistan Papua New Guinea Philippines Russia Samoa
Singapore Solomon Islands Sri Lanka Taiwan Thailand Timor-Leste
USA Vietnam
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L AWA S I A
Sections Law Management lawmgt.chair@lawasia.asn.au Family Law & Family Rights family.chair@lawasia.asn.au Judicial (Open only to members of the judiciary) judicial.chair@lawasia.asn.au Human Rights humanrights.chair @lawasia.asn.au Business Law business.chair@lawasia.asn.au Business Law Sub-Committees • • • • • • • • • • • • •
ADR Asia-Europe Banking & Finance Communications, Technology & Data Protection Corporate Securities & Investment Environmental Law Energy & Resources Franchising Intellectual Property Insurance Real Estate & Transactions Taxation UNCITRAL
Standing Committees Employment Law emplaw.chair@lawasia.asn.au Criminal Law crimlaw.chair@lawasia.asn.au Legal Professional Indemnity Insurance pii.chair@lawasia.asn.au LAWASIA International Moot moot.chair@lawasia.asn.au
2016-2017 Executive Committee President Mr Prashant Kumar INDIA President - Elect Mr Christopher Leong MALAYSIA Immediate Past President Mr Isomi Suzuki JAPAN Vice Presidents Mr Justin Dowd AUSTRALIA Mr Chunghwan Choi KOREA Mr Upul Jayasuriya SRI LANKA Committee Members Dr Gordon Hughes AUSTRALIA Mr Ian Haynes NEW ZEALAND Mr Yap Teong Liang SINGAPORE Ms Melissa Pang HONG KONG, SAR
Secretariat Head Office Suite 1101, Level 11 170 Phillip Street Sydney NSW 2050 AUSTRALIA Phone: +61 (02) 9926 0165
Events
Fax: +61 (02) 9223 9952 Email: lawasia@lawasia.asn.au Website: www.lawasia.asn.au Chief Executive Officer Michael Tidball Section Liaison Officer Kate Hewson kate.hewson@lawasia.asn.au
TOKYO
30th LAWASIA Conference 18-21 September 2017
Conference & Events Coordinator Magda Imre conference@lawasia.asn.au Membership, Communications & Administration Officer Kim Shazell lawasia@lawasia.asn.au
SYDNEY
FDI Breakfast Forum Foreign Direct Investment: A LAWASIA Perspective 9 October 2017
Ms Chisako Takaya JAPAN Mr Shyam Divan INDIA Mr Eric Eunyong Yang KOREA Chief Executive Officer Mr Michael Tidball AUSTRALIA Note: The term of the 2016-2017 Executive Committee will conclude on 17 September 2017, when elections for 2017-2018 will be held. Please refer to the LAWASIA website for details of the incoming officeholders.
NEW DELHI
1st LAWASIA Human Rights Conference February 2019 Find out about other upcoming events at www.lawasia.asn.au/ events.html
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L AWA S I A
SECTIONS & COMMITTEES
Human rights update The LAWASIA Human Rights Section (HRS) has proven to be one of the most proactive and influential groups within the organisation. Led by its Co-Chairs, Mr Shyam Divan and Professor Yasushi Higashizawa, the HRS has implemented a range of new initiatives over the last 12 months. September 2016 marked the beginning of the HRS Internship Program, a project open to law students in the Asia Pacific and delivered in partnership with LAWASIA member organisations (currently, the Bar Association of India). As part of the internship, law students undertake a year-long placement with their local member association and work as jurisdictional contributors to the HRS. The program is designed to provide mutual benefits to all parties: students are given the opportunity to gain practical legal experience while building their local and regional professional networks; member organisations receive substantial administrative and operational support; and the HRS benefits from meaningful research assistance, the expansion of its academic capabilities and a growth in regional influence. Sustaining its momentum, the HRS launched a new digital publication, Human Rights Update, for circulation to its members on a monthly basis. The newsletter focuses on international developments in the field of human rights and provides direct links to in-depth coverage of the featured stories. In the eight editions published so far, Human Rights Update has explored a range of complex issues, including the ongoing Syrian refugee crisis; comparative approaches to legalising marriage equality; efforts to balance civil liberties against national security concerns; and the impact of the Trump administration on the rule of law. It has also highlighted some of the region’s most significant achievements in progressing human rights, such as the increasing representation of women in the legal profession, and the implementation of new labour policies by multinational corporations to support workers’ rights and welfare in the Asia Pacific. With membership rising and a LAWASIA Human Rights conference slated for March 2018, the HRS will continue to drive LAWASIA’s advocacy in the months ahead. 88
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CONFERENCE REPORT
10th LAWASIA Employment Law Conference What the legal profession needs to know about the changing face of employment and its impact on cross-border practice in the Asia Pacific. Led by Committee Chair Mr Bernard Banks, the LAWASIA Employment Law Committee held its 10th Employment Law Conference in Chennai, India, on 11-12 March 2017. The conference catered to an international audience of legal professionals and was delivered in partnership with LAWASIA’s local members at the Bar Association of India and the Society of Indian Law Firms. The conference program explored the salient issue of The Future of Employment: Regional and Cross-Border Legal Implications. Business sessions covered a range of topics, including confidentiality and restraint clauses, surveillance and privacy, the work/life interface, international dispute resolution, and immigration issues in cross-border employment. All issues were discussed from a forwardlooking perspective, consolidated at an open forum during the final session. The attendance of speakers and delegates from 11 regional jurisdictions ensured a diverse representation of professional insights. It was an intensive and focused conference, featuring interactive presentations, an impressive line-up of speakers, and significant contributions from the LAWASIA Executive Committee and its President, Mr Prashant Kumar. The event was the latest in a series of specialised conferences produced by the Employment Law Committee, which again delivered the regional perspective, collegiality and professional collaboration for which LAWASIA events are known. It was particularly noted for attracting substantial delegations from the world’s two largest labour markets, India and China, whose active involvement was a great benefit to the conference program.
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L AWA S I A
BELT & ROAD
CONFERENCE REPORT
A catalyst for connectivity
LAWASIA Risk Management & PII Conference
The BRI, New Silk Road, OBOR or SREB-MSR? Whatever your preferred term, it is synonymous with change.
As China’s One Belt, One Road initiative gathers momentum, the only sure outcome for the Asia Pacific is change. With this in mind, The Law Society of Hong Kong (LSHK) hosted its inaugural OBOR conference on 12 May 2017, titled “The Belt and Road: A Catalyst for Connectivity, Convergence and Change”. The event was great success for the LSHK, and LAWASIA was proud to assist its member as an official supporting organisation. More than 650 international delegates from the Belt and Road countries participated in the conference program, which spanned key legal issues in international trade, big data, web-based systems of commerce, and cross-border dispute resolution. The sessions were framed by the central
CONFERENCE REPORT
LAWASIA FDI Seminar
themes of regional collaboration and growth . The attendance of high-level government dignitaries underscored the importance of the event. Officiating guests included then-Chief Executive Mr CY Leung; Director of the CPG Liaison Office in Hong Kong Mr Zhang Xiaoming; and Deputy Commissioner of PRC Foreign Affairs in Hong Kong, Ms Tong Xiaoling. The conference saw many achievements in regional advocacy, but none greater than the signing of the “Hong Kong Manifesto” in which 36 law associations from 23 Asia Pacific jurisdictions pledged to promote synergy, strategic partnership and collaboration along the Belt and Road.
The LAWASIA Risk Management & Professional Indemnity Insurance Conference was held on 15-16 June, hosted by The Law Society of Hong Kong and Hong Kong Academy of Law. The conference explored topics of relevance to all lawyers, emphasising that matters of risk management and PII not only permeate the advice given to clients, but also the decisions lawyers make about the management of their practice. The sessions analysed complex issues that pervade risk and insurance, such as questions of best practice, the relationship between professional regulation and insurance, and the ramifications of an increasingly global market for legal services. Delegates had the opportunity to exchange views with an expert panel of speakers, noted for the contributions of Mr Wesley Wong SC, Solicitor General of the Department of Justice in Hong Kong SAR. By the event’s conclusion, delegates had developed a sound understanding of current issues in risk management and PII, and the necessary professional skills to adapt as future changes emerge.
On 15 May 2017, the Osaka Bar Association hosted a novel precursor to the 30th LAWASIA Conference. The event was a collaborative seminar focused on the legal implications of foreign direct investment (FDI) and, specifically, the comparative approaches to FDI in key Asia Pacific jurisdictions. Prominent international lawyers from Malaysia, Korea, Hong Kong and Sri Lanka outlined the prevailing issues,
forecasts and systems related to FDI in their home jurisdictions. Their combined perspectives offered a unique insight into the region’s current FDI climate. Delegates contributed to indepth analyses at the concluding open panel session, when speakers were joined by a member of the Osaka Bar Association to discuss strategic issues for lawyers working in the field of FDI.
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L AWA S I A
REGIONAL PROFESSION
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Law associations unite at 28th POLA Summit
Leaders of regional judiciary gather in Tokyo
Developing a common approach to future challenges.
Chief Justices of the Asia Pacific hold strategic talks in a true meeting of the minds.
The Bar Association of Sri Lanka hosted the 28th Presidents of Law Associations in Asia (POLA) Conference in Colombo from 22-24 July 2017. This year’s program focused on the future of the legal profession, including current regional trends and the impact of technological innovation on legal practice. The sessions also examined issues of professional privilege, alternative dispute resolution, the role of lawyers in achieving social justice, and the importance of instilling mutually held values in future generations of lawyers. The annual POLA summit provides a channel for open exchange and collaboration among law societies in the Asia Pacific. It aims to support the independence and influence of law societies, with a focus on issues of professional responsibility, legal education, public interest advocacy and regional goodwill. LAWASIA President Prashant Kumar attended the summit as Honorary Conference Chair, where he delivered a plenary address to POLA delegates and served as moderator in two working sessions. With the attendance of more than 300 delegates from the Asia Pacific, the summit demonstrated and reinforced the strength of the regional legal profession.
The Conference of Chief Justices of Asia and the Pacific (CJC) has long been viewed as the most notable success of LAWASIA’s Judicial Section. Operating on a biennial basis, this year’s 17th Conference of Chief Justices of Asia and the Pacific coincides with September’s 30th LAWASIA Conference in Tokyo, Japan. It has been 14 years since the CJC was last held in Japan and, in that time, the legal profession has experienced an unprecedented rate of change. In this context, the conference offers a valuable forum for judicial leaders to address current issues in law and legal practice, such as ensuring the independence of the judiciary, harnessing new technology to improve access to justice, and developing cohesion across regional legal frameworks. The 2017 CJC is an important opportunity to reinforce public confidence in the courts. Such confidence is not only a prerequisite of judicial authority, but also a key component of social stability and economic strength. The conference represents a significant achievement in the rule of law, and is recognised as a unique opportunity to reinforce a commitment to the integrity, independence and efficacy of the regional judiciary.
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JUDICIAL PRACTICE
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L AWA S I A
RESPONSE
Statement of continuing concern regarding the treatment of lawyers in China In July 2015, LAWASIA released a statement of concern in response to the Chinese Government’s widespread arrest and interrogation of lawyers known to be working on human rights cases. Two years after the “709 Crackdown”, LAWASIA has issued a second statement addressing the treatment of lawyers in the period since their prosecution and detention in 2015. Recalling the ‘Statement of Concern at Treatment of Lawyers in China’ (21 July 2015) issued by the Law Association for Asia and the Pacific (LAWASIA); Recalling also the numerous statements, resolutions and other documents issued by LAWASIA with respect to the rights of lawyers; Affirming the United Nations Basic Principles on the Role of Lawyers (1990) (Basic Principles); Affirming the international human rights instruments and core human rights treaties promulgated by the United Nations; Noting that, since its establishment in 1966, LAWASIA has sought to advocate for the interests of the legal profession, to promote the administration of justice, and to uphold and encourage adherence to the rule of law in the Asia Pacific, including the protection of international human rights; Further noting that all LAWASIA policies and actions are fundamentally informed by the constitutional objectives described above; Recognising its position as the predominant representative organisation for law associations and individual lawyers in the Asia Pacific; and Acknowledging its vital role in protecting members of the legal profession from persecution, infringements and improper restrictions, LAWASIA is compelled to express its deep concern regarding the reported treatment of lawyers in the People’s Republic of China (China). LAWASIA previously stated its concern in July 2015, when it was widely reported that a large number of lawyers involved in human rights cases had been arrested, detained or otherwise harassed by the authority of the Chinese government. As we approach the second anniversary of these incidents, it appears there has been no progress in the treatment of lawyers working on human rights or other public interest cases in China.
The United Nations Committee Against Torture has indicated that some of those arrested during the incidents of July 2015 have since been subjected to torture or other forms of cruel or inhuman treatment during their detention. Further reports, available in the public domain, suggest that those prosecuted have been denied the right to access or retain defence counsel of their choice, as well as the right to a fair and public hearing by an impartial tribunal. Such treatment by the law enforcement authorities and judiciary of China would be in violation of the core human rights treaties and universal human rights instruments of the United Nations, including the International Covenant on Civil and Political Rights (1966) to which China is signatory. The Hong Kong Bar Association, a LAWASIA member organisation, rightly states that relevant obligations under international law are supported by provisions of the domestic law of China. Given the information above, LAWASIA calls upon the government of China to: i. observe its obligations under international human rights law; ii. ensure that those prosecuted are afforded their proper rights to: a. access the assistance of a lawyer of their choice, and b. a fair and public hearing by an impartial tribunal; and iii. ensure that lawyers in China are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference. Prashant Kumar President, LAWASIA O C TOBER 2017
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I N S P I R AT I O N
“You have to take ownership and leadership of tomorrow. For that to be possible, you have to strengthen your capacity and widen your vision as a global citizen.”
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Photo: MONUSCO/Myriam Asmani/https://flic.kr/p/enZJCe
Ban Ki-moon Former Secretary-General of the United Nations
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ICCA 2018 Press ad Asian Jurist 8-17.qxp_Layout 1 14/8/17 3:46 pm Page 1
Registration Now Open Early Bird Registration available to 1 November 2017 ICCA Member Early Bird AUD $2,340 incl GST Early Bird Registration AUD$2,600 incl GST Register online at www.icca2018sydney.com
SYDNEY ICCA 2018 15-18 April 2018 Evolution and Adaptation: The Future of International Arbitration ICCA's biennial Congress is the world's premier international arbitration and investment treaty conference. It attracts up to 1000 delegates from around the world, including many of the field's leading arbitrators, academics, and practitioners. Hosted in Australia for the first time at the newly opened International Convention Centre in Darling Harbour, the ICCA 2018 Congress provides a unique opportunity to expand your knowledge base and build your professional network.
Social Programme
Conference Programme Highlights
The Opening Ceremony extravaganza will take place at the Sydney Opera House, followed by a Welcome Reception and will be a start to an ICCA Congress like no other. Music by the Sydney Symphony Orchestra will feature a special performance created just for ICCA.
The theme for the ICCA 2018 program is 'Evolution and Adaptation: the Future of the International Arbitration', with key events including: • A "TED Talk" style luncheon, where leading arbitrators will offer their personal reflections on the past, present and future of their careers and of arbitration itself. Questions and observations from the floor will be encouraged. • A "hot topics" panel discussing the latest controversies, newest decisions, and boldest proposals of 2018. Congress delegates will be invited in advance to suggest "breaking news" topics for the panel's consideration. • A panel discussion on the role of public bodies and public interests in arbitration processes which will consider the role of arbitration as a public inquiry that regulates broader norms of fairness.
ICCA 2018 promises to provide a vibrant social calendar that makes use of the many harbourside venues and restaurants that define the city of Sydney. ICCA 2018 Opening Ceremony Sunday 15 April 2018 1700-2000. Sydney Opera House Sydney Harbour Symphony
ICCA 2018 Gala Dinner Tuesday 17 April 2018 1800-2100 Dinner Under the Southern Stars The ICCA 2018 Gala Dinner will encapsulate the magic of fine dining under the glorious Southern sky. As dusk turns to night, the lights will drop for a grand entrance to tables for a unique dining experience. The menu will showcase Indigenous Australian and New Zealand flavours and will be carefully paired with premium Australasian varietals to feature the very best of wine producers.
ICCA 2018 Follow-on event AMINZ – ICCA International Arbitration Day, 19-20 April 2018 www.aminz-iccaqueenstown.org Early Bird Registration rate for the NZ follow-on event now available NZ$840.00 incl GST