Magazine of The European Law Students’ Association
No.56 ¡ II-2014
SYNERGY
magazine
The role of the ESC
'Your World First'
The protection and safety of journalists
Karl - Friedrich Bopp, The Council of Europe, p. 8
Isabel Scholes, CMS Legal, p. 12
The case-law of the European Court of Human Rights, p. 16
The Arab Spring
Join the forces to protect our fundamental values!
The European Social Charter:
Treaty of social and economic rights
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Synergy Magazine
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SYNERGY magazine
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Editor’s letter Dear ELSA friends,
The new board of ELSA International has started their term in office! 8 people in the ELSA House from 6 different countries are ready to work full time to accomplish our goals, to create “A just world in which there is respect for human dignity and cultural diversity”.
Setting out from our dedication to human rights, we are focusing on European Social Charter in this 56th edition of the Synergy Magazine, a Council of Europe treaty, which guarantees social and economic human rights. If you want to have a closer look on the topic, I recommend you to read the article by Karl-Friedrich Bopp, the Secretary of the Governmental Committee of the Council of Europe, on page 8.
The first months have passed really quickly, and we are happy to announce ELSA International 14/15 that several of our big projects have already been launched! The 3rd edition of the European Human Rights Moot Court Competition in cooperation with the Council of Europe, the 13th edition of the ELSA Moot Court Competition on WTO Law and the Legal Research Group on the European Social Charter.
If you have further interest on the topic, do not miss the articles from the Council of Europe, EHRAC, CMS and Queen Mary School of Law. Moreover, you can read the article from DLA Piper on page 14 and see our new partnership for this term in office! You can, of course, also take a look over the activities and projects organised within the Network.
Idil Buke Civelek Vice President for Marketing
I wish you a great motivation and inspiration for the year, and hope to see many of you soon!
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Contents
Editor's Letter
4
ELSA International 2014/2015
6
Partners' and Externals' Perspective “We need human rights compliant integration strategies”
7
Maintaining Minimum Social Standards in Times of Austerity
The Role of the ESC Karl-Friedrich Bopp, Council of Europe, p. 8
8
Creating Shared Value Through Client Understanding
12
New partnership - DLA Piper and ELSA International
14
The Protection and Safety of Journalists
16
The Idea of Toleration and its Contemporary Consequences
20
The Software Market in the EU after the Usedsoft Judgement
23
ELSA Events Calendar 2015
26
ELSA Interview CBL International brings ELSA to Dubai
28
International Focus
Your World First Isabel Scholes, CMS, Legal, p.12
The Facilitating Factor of the Global Employment for Already 30 Years
30
Moot at the WTO and the European Court of Human Rights!
32
ELSA Day Connected Us for the Second Time
34
Surveillance of Internet Communication
36
19 ELSA Summer Law Schools in 2014
39
Think Global, Act Local - The ELSA Network 3rd ELSA Vienna Law School on Dispute Resolution: One, Two, Three, Go!
42
ELSA Delegation: WIPO
45
A New Start for Volunteering in Romania?
46
ELSA Seal the Deal: M&A Contract Competition in Austria
48
Inspire Others to Inspire Themselves
50
The protection & safety of journalists Philip Leach, Council of Europe, p.16
SYNERGY magazine
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ELSA International 2014/2015
The International Board of ELSA
One year of dedication, motivation and inspiration!
From 1st of August a new International Board took over and are now coordinating the work of ELSA from the offices in Brussels. Their 12 months in office will include a lot of hard work, but also a lot of travelling to visit the Network they are working for. Armin Khoshnewiszadeh, the President of ELSA International, comes from Norway and studies law at the University of Oslo. In the upcoming year he is responsible for the overall coordination of the International Board and its work. He will also be responsible for representing the association externally. When not working for ELSA, he enjoys reading about politics and history. Having travelled extensively since childhood he is as comfortable on the road as at home. Hopefully, this will lead to many travels and opportunities to exchange experiences with the officers of the Network. The first Ukrainian Secretary General in the International Board of ELSA throughout the history is coming from an educational heart of Ukraine, the city of Kharkiv. Her name is Alina Shchetinina and she is a 22 years old graduate from the National Law University, situated in her hometown. She is considered to be a friendly and open person interested in Latin dances, drawing and sports. Alina is responsible for the internal management and her main responsibilities are to support the network by providing possibilities to obtain trainings, administrating the job of the International Board and leading the work of the officers throughout the whole Europe. The one and only Mediteranean in the House is coming from Turkey. Her name is Idil Buke Civelek, and she is 22 years old, having her bachelor degree in Istanbul University Faculty of Law. She is the Vice President for Marketing, re6
sponsible from the co-ordination of Marketing throughout the year. Being creative and innovative, she is thinking to improve the area by drawing attention to the opportunities of our Association with a special focus to Corporate Identity implementation. In her free time, she likes reading, watching movies, running and surfing. For a third year in a row the Financial Management stays in the hands of the Nordics. From cold and remote Finland comes Lauri Vaihem채ki, 23 year old law student from the Finnish capital Helsinki. On his shoulders lays the responsibility for the budget and finances of ELSA International, as well as contacts to the auditors and the bank. During his term Lauri will have special focus on strategic goals in the FM area and maintaining the current liquidity of ELSA International. Money may be the root of all evil, but it is also the base of all organizations and activities. From the land of fjords and mountains, salmon and brown cheese, comes another Scandinavian who's name is Olav Vogt Engeland. He grew up happily in the countryside of Norway and before moving to Brussels he pursued his law degree at the University of Oslo. Olav is the geek in the board. He is the Vice President for Academic Activities thus providing practical legal education opportunities is his main occupation this year. Olav's flagship projects this year are the International Law Review and the International Legal Research Group on Social Rights. When Olav is not a project manager, he likes exotic travels, funky architecture and electronic music. From the beautiful city of Falun, Sweden we have the one who will be responsible for our Moot Court Competitions. Her name is Tanja Sheikhi and she is 22 years old.
ELSA International 2014/2015
ELSA International 2014/2015 Olav Vogt England, Armin Khoshnewiszadeh, Alina Shchetinina, Idil Buke Civelek, Tanja Sheikhi, Dariia Oliinyk, Lauri Vaihemäki, Marko Dolenec
Before moving to Brussels she finished her third years of law studies at Umeå University, located in the northern part of Sweden. During this year she will be coordinating the 13th edition of the EMC2 on WTO law and the 3rd edition of the European Human Rights Moot Court Competition. She is fascinated about the internationality of the moot courts, during this year she will be working with both law students and external partners from all around the world in order to make the competitions possible. By inspiring the network she hopes to motivate national groups to promote and organise Moot Court Competitions even more. The journey for her and her board has just begun, and she is ready for a year full of adventures. This year will be a year, she will always remember! For the second year in a row we have a Croatian holding the position of Vice President for Seminars and Conferences. His name is Marko Dolenec he is 24 years old and originally he is from the small town called Ivanec from the north-west of Croatia. Five years ago he moved to Zagreb to study law and there he met ELSA for the first time. Being very outgoing, broad-minded and internationaly oriented,
SYNERGY magazine
Marko easily found his place in the area of seminars and conferences where working with and for people has always been the biggest satisfaction. During upcoming year Marko will be responsible for sending the delegates in international institutions, ensuring the academic quality of events and developing international projects. Marko sees his role in the International Board in providing encouragement, motivation and helping officers to develop their creative ideas. Thus, internationality, quality and teamwork will be the essence in the S&C for the next year. Dariia Oliinyk, originally from Lviv, cultural heart of Ukraine, is the Vice President for Student Trainee Exchange Programme of ELSA International. She’s just turned 24, has already obtained her Master’s degree in International Economic Law and has 4 years’ experience of working in legal field behind. Being result oriented, strict and creative simultaneously she fits perfectly STEP area she is working for already 6 years. Her ambition in STEP is to make this project world known and globally spread. In her free time she is fond of painting, photography, tennis and reading.
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Partners' and Externals' Perspective
Maintaining Minimum Social Standards in Times of Austerity:
The role of the European Social Charter
I. Introduction Karl - Friedrich Bopp
The current financial and economic crisis has an impact on all member Council of Europe* States of the Council of Europe. Many countries have taken decisions to confront the crisis. These decisions included austerity programmes involving cuts in public spending in areas such as pensions and unemployment benefits. They touched mostly categories of the population which were already economically and socially disadvantaged. Hence it became an issue on how to protect the vulnerable groups. Secretary of the Governmental Committee
However, periods of economic difficulties should not automatically lead to the deterioration of the situation of vulnerable groups. They should be rather viewed as an opportunity to overhaul the national social rights protection system to reinforce the efficiency of the national safety net. This Article outlines the role of the European Social Charter, in particular the European Committee of Social Rights, in maintaining minimum social standards in times of austerity. II – The European Social Charter and its Control Mechanisms
The European Social Charter is a human rights treaty which is a complement to the European Convention on Human Rights with both treaties being rooted in the Universal Declaration of Human Rights.
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The European Social Charter was adopted in 1961 and revised in 1996. It is one of the Council of Europe’s most widely ratified human rights treaties; it is currently ratified by 43 out of the 47 member States. 33 States are bound by the Revised Charter and 10 are still bound by the 1961 Charter. The material scope of the European Social Charter is very wide. The Revised Charter contains 31 Articles and 98 paragraphs covering social rights related to housing, health, employment, education, social protection, non-discrimination. Within these areas there are also provisions that protect specific target groups such as children, people with disabilities, the elderly and migran ts. At the time of ratification, a country can choose which provisions of the European Social Charter to accept as long as it chooses a certain minimum number (not less than 16 articles including 6 so-called ‘hard core provisions’ or 63 numbered paragraphs). This means that different States are bound by different obligations. Supervision of the application of the European Social Charter takes place on the basis of two procedures, a * Karl - Friedrich BOPP, Department of the European Social Charter, Secretary of the Governmental Committee of the European Social Charter and the European Code of Social Security, Directorate General 1 - Human Rights and Rule of Law, Council of Europe
Partners' and Externals' Perspective reporting procedure and a collective complaints procedure. In both procedures the supervisory or regulatory body is the European Committee of Social Rights (“The Committee”), which is composed of 15 independent and impartial experts. It is a quasi-judicial body and it began adopting “conclusions” on state compliance with the Charter more than 40 years ago (in 1968) on the basis of the national reports. In addition, since 1998 it has handed down “decisions” in collective complaints cases. These conclusions and decisions containing the legal assessments of state compliance make up what is commonly called the Committee’s “case law”.
The complaints procedure constitutes an important instrument for enforcing the rights guaranteed by the Charter, not least in respect of poverty reduction and social exclusion. The impact of this procedure is growing steadily. It is a speedy and transparent procedure and it is easily accessible (for example, no requirement for exhausting domestic remedies).
The reporting procedure is mandatory for all States Parties and at present they report on each accepted provision every 4 years. The articles are divided into 4 thematic groups with a report on one theme every year. The thematic groups are: (1) Employment, training and equal opportunities; (2) Health, social security and social protection; (3) Labour rights and (4) Children, families and migrants.
The European Committee of Social Rights affirms the general principles of interpreting the European Social Charter as follows:
The collective complaints procedure, which entered into force in 1998, allows certain trade unions, employers’ organisations and NGOs to lodge complaints alleging violations of the Charter. The procedure is facultative (as opposed to the reporting procedure) and so far only 15 out of the 43 States Parties are bound by it.
SYNERGY magazine
III – The Case-Law of the European Committee of Social Rights with respect to Austerity
- The European Social Charter guarantees practical and effective rights. This statement is identical to that of the European Court of Human Rights as regards the European Convention on Human Rights and it indicates unequivocally the relationship between the two treaties. - The classic distinction between obligations of means and obligations of results is not a satisfactory interpretation framework for understanding the European Social Charter.
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Minority Rights Partners' and Externals' Perspective The fact remains, nonetheless, that taking a large number of measures and allocating sizeable means and resources to achieving the objectives of the treaty do not suffice to comply with it when it becomes flagrantly apparent that certain individuals, groups or categories of the population do not actually benefit from the rights that the Charter recognises for them. - Finally, it is not up to the European Committee of Social Rights to tell States which precise measures have to be taken: the Charter is a treaty on human rights, it is neither an instrument for harmonisation nor a tool for coordinating social policies; the States can decide on the type of measures they intend to take to ensure the effective guarantee of the human rights that they have undertaken to respect by ratifying the treaty and to ensure their implementation. Referring to austerity measures taken by national governments, the European Committee of Social Rights developed its case-law when taking decisions in a number of collective complaints procedures. Some of its interpretation is prescribed below and is mainly taken from the decision on 76/2013 – Federation of employed pensioners of Greece (IKA-ETAM v. Greece), where it concluded that there was a violation of Article 12§3 of the 1961 Charter (The right to raise progressively the system of social security to a higher level). “… State Parties have to maintain the social security system on a satisfactory level that takes into account the legitimate expectations of beneficiaries of the system and the right of all persons to effective enjoyment of the right to social security. ….” “… State Parties must be capable of establishing that any restrictions or limitations are necessary in a democratic society for the protection of the rights and freedoms of others or for the protection of public interest, national security, public health or morals….” “…. the income of the elderly should not be lower than the poverty threshold, defined as 50% of median equalised income as calculated on the basis of the Eurostat at-risk-of-poverty threshold value…” “… the elderly have the right to adequate resources in order to enable them to lead a decent life…..”
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The European Social Charter is a human rights treaty which is complement to the European Convention on Human Rights with both treaties being rooted in the Universal Decleration of Human Rights. “…. Governments are to conduct a minimum level of research and analysis into the effects of far-reaching measures to assess their impact on vulnerable groups…” “… The government has to establish that efforts have been made to maintain a sufficient level of protection for the benefit of the most vulnerable members of society…” “… Any decisions made in respect of pension entitlements must respect the need to reconcile the general interest with individual rights, including any legitimate expectations that individuals may have in respect of the stability of the rules applicable to social security benefits…” IV – Bringing national situations in line with the Charter
When the European Committee of Social Rights concludes that the situation in a state is not in conformity with the European Social Charter, it is up to the state concerned to take such measures as necessary to put an end to the violation. In the case at hand, the right to social security must be implemented in an effective manner. The Committee of Ministers of the Council of Europe is in charge of monitoring the decisions of non-conformity taken by the European Committee of Social Rights, and in particular of ascertaining that states take appropriate measures to be in conformity with the Charter. At the same time it is up to the organisations that have lodged complaints that have a decisive role to play in disseminating the Committee’s decisions among national decisionmakers, as well as among the courts and the general public. It therefore makes sense to state that, far from putting an end to the question of effective access by all to the right of social security, these decisions are a new point of departure to mo-
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Council of Europe and UNHRC Strasbourg
Partners' and Externals' Perspective
bilise all actors. It is by referring constantly to the principles enunciated by the European Committee of Social Rights during consultations on the adoption of new legal standards or on their implementation, by contesting decisions that would seem to run contrary to these principles, and by calling on judges to refer to these principles when settling disputes referred to them, that the effective right to social security will be effective. The European Committee of Social Rights will be attentive to ensure that the interpretation principles it has defined constitute a framework for action by the states party to guarantee the effective right to social security, both when examining the upcoming reports from Greece and other states that have accepted Article 12 and in the event of new collective complaints about this provision. V - Conclusion
Through its methods of interpretation based on international human rights law, the European Committee of Social Rights has developed an interpretation of the European Social Charter placing human dignity at the heart of the treaty. Many other examples of social security rights being treated as human rights in the Committee’s case law could be presented to confirm this analysis e.g. the right to a decent pension. Nevertheless, the Committee's case-law in this regard remains fragile as the importance attached to economic and social rights in Europe is not the same as the importance attached to civil and political human rights. What are the preconditions for the successful continuation of the Charter's human rights approach ? First of all, the Council of Europe must itself reinforce this dimension by treating the Charter practically and consistently as a universal and binding human rights instrument. An obligation to ratify the revised Charter and accept the collective complaints procedure would be a clear sign of such a commitment and draw the Charter and the European Convention on Human Rights closer together. The next key step would be for the European Committee of Social Rights' decisions and conclusions to be used as a source of and framework for intergovernmental activities and assistance in the social domain.
quasi-equivalent of the European Court of Human Rights, until governments decide to incorporate social rights into the European Convention on Human Rights. VI – The European Social Charter and ELSA
The example mentioned in the specific collective complaints procedure shows how far the right to social security is being guaranteed through the European Social Charter. It also shows the direct link of the European Social Charter with everyone’s life. The Council of Europe’s Department of the European Social Charter is pleased to contribute through this Article to the launch of ELSA’s new research project related to national austerity measures. This Article is also meant to familiarise young lawyers in Europe with the protection of social rights by means of the European Social Charter and thus to contribute to make the European Social Charter better known at the national level.
Finally, and above all, the status of the European Committee of Social Rights should be strengthened to make it the SYNERGY magazine
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Minority Rights Partners' and Externals' Perspective
Creating shared value through client understanding
"Your World First"
F
or CMS, international cooperation is both a way of life and a key factor in Isabel Scholes our success. We are a top ten gloDirector of Marketing and bal law firm with 58 offices in 32 Communications, CMS Legal countries offering specialist expertise and local knowledge backed by experience in a wide variety of markets and jurisdictions. But the scale and depth of our resources is only part of the story. The essence of our approach to delivering legal excellence is a shared philosophy that focuses on delivering value through total client understanding and commitment. We call this approach ‘Your World First’. CMS people train and work in cross-border teams, sharing knowledge in key legal practice areas and industry sectors. Everywhere we operate, whether we are serving clients locally or on cross-border assignments, the ‘Your World First’ concept means we put client success and the client’s perspective first in everything we do, delivering expertise and making connections that add value to the client’s business. This approach motivates each CMS team member to take the challenge personally by focusing on client goals and delivering solutions that make a difference in every aspect of their work. Applying legal knowledge with the goal of creating shared value is a key aspect of the CMS approach, both to client work and to delivering our Corporate Social Responsibility (CSR) strategy. Just as the European Social Charter focuses on uniting Europe’s diverse communities behind fundamental freedoms and rights, ‘Your World First’ offers a common thread for CMS professionals to channel their skills into delivering meaningful results. Taking individual and collective pride in our contributions to CSR projects is a win-win for everyone at CMS. 12
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Applying legal knowledge with the goal of creating shared value is a key aspect of the CMS approach, both to client work and to delivering our Corporate Social Responsibility (CSR) strategy. As Guy Pendell, partner at CMS London, says, “We treat pro bono work in exactly the same way as we treat chargeable work. Talk to any of our lawyers who do pro bono work and they will tell you how rewarding it is on a professional and personal level and how the work enhances their abilities and careers.” By offering knowledge, expertise and energy to charitable and educational initiatives with local and national reach, CMS people expand their experience and develop their capacity to excel in a wide variety of problem-solving scenarios. CMS firmly believes that fostering individual potential by promoting and respecting diversity and inclusion is fundamental to the success of any truly international organisation. Cross-border cooperation and cultural
Council of Europe and UNHRC Strasbourg
Partners' and Externals' Perspective
awareness helps us deliver our ‘Your World First’ promise and ensures we harness all the talents at our disposal to the benefit of every project. Results show the power of this approach, turning aspiration into concrete outcomes.
CMS, many of our CSR projects naturally touch on these vital areas and often have an international dimension. For example, a local CMS team initiated our support for Lawyers for Lawyers (L4L), a Dutch foundation that promotes the proper functioning of the rule of law by supporting lawyers worldwide who are threatened or suppressed in the execution of their profession. Last year, CMS was awarded the TrustLaw ‘Best Collaboration Award’ for its work with DLA Piper on a global research project to produce a collaborative study of laws on domestic violence. CMS lawyers and support personnel from France, Germany, the Czech Republic, Poland, Russia, Ukraine and the UK contributed to the project, the largest pro bono exercise undertaken by CMS to date. The findings are being used by a Chinese NGO in its work on domestic violence laws in China.
In the Netherlands, for example, CMS has taken a central role in developing social enterprise as a powerful new force for the positive role of business in the community. Social enterprise is the term used to describe financially selfsustainable businesses whose primary aim is to create greater social value for people and the environment, with profit as a welcome but secondary goal. CMS Netherlands provides pro bono advice to Social Enterprise NL, a national platform that represents, connects and supports social enterprises. CMS the Netherlands managing partner Dolf Segaar explains, “Our lawyers are assisting Social Enterprise NL in its interactions with the legislature and also lobbying to help the concept get more legal recognition nationally. We also advise individual businesses that are committed to social enterprise on how to set up company structures and operate effectively within the sector.”
For CMS, ‘Your World First’ is a clear expression of why we are in business and what we aim to achieve when we represent our cliSocial and economic ents and our firm. Our success depends on the equality of opportunity efforts of our professilies at the heart of the onals, individually and European Social Charter's commitin teams, that translate the phrase into results ment to protecting the rights of citiSocial and economic around the world. CMS zens in key areas of everyday life. equality of opportunity works to be a positive lies at the heart of the corporate citizen and European Social Charter’s commitment to protecting the create shared value based on individual rights and responsibirights of citizens in key areas of everyday life – housing, lities – an approach which has parallels with the fundamental health, education, employment, legal and social protecand far-reaching aims of the European Social Charter. tion and the movement of people between countries. At
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Partners' and Externals' Perspective
NEW partnership - DLA Piper and ELSA International
Promoting equality, diversity and inclusion in the legal profession by collaborating on DLA Piper's Break Into Law Programmes (BIL).
L
ack of diversity is an issue which is ubiquitous in the Community Engagement legal profession globally. Manager, Middle East and Extensive research demonstrates that Europe at DLA Piper law is one of the most socially exclusive professions in the world. As a leading global law firm, DLA Piper believes that equality, diversity and inclusion are fundamental to our business and are key components of our vision and values. We believe that fostering diversity and equality allows us to acquire the most talented people, to build the most effective teams for our clients and deliver the highest level of service. Therefore DLA Piper developed the Break Into Law (BIL) program. Rasha Kashkoush
Break into Law is DLA Piper's global initiative focused on removing barriers to the wide range of legal and nonlegal careers within the legal profession. In every region around the world, we are using our resources and the skills of our people to ensure underrepresented young people have the opportunity to gain access and insight into the legal industry and career progression within it. Break into Law encompasses a variety of programmes that have been adapted according to local needs to help talented young people to enter and succeed within the legal sector. BIL begins with projects that improve access 14
to education for young people, moving through to initiatives that provide an insight into and experience of our industry, directly linking into our firm's diversity priorities. BIL involves mentoring, work experience, CV and interview skills workshops, research, thought leadership events and scholarships. Examples of our BIL projects around the world cover the spectrum of activities. Russian Legal Ethics Course
Working in partnership with the non-profit PILnet, law firm White & Case and lawyers from Verizon and Microsoft, we developed and delivered an initiative in Russia entitled “Professional Responsibility and Ethics in the Global Legal Market�. This unique course provides law students with the chance to gain practical experience working on legal case studies, while interacting with experienced lawyers and learning about the ethical issues they face working in global organisations. Legal education in Lebanon
For the past 2 years, DLA Piper collaborated with the Beirut Bar Association to develop and deliver two-day workshops to their law students and trainees. The workshop topics included an 'English Legal Drafting' course focused on how to draft corporate and financial transaction documents in English.
Partners' and Externals' Perspective The training our lawyers provided gave participants an opportunity to have a more hands-on experience of the law, complementing their often more theoretical legal education.
helping bridge this gap in the curriculum by supporting teams from UAE University Law School to compete in international Mooting Competitions through training and mentorship.
Employability Skills in the United States
All-Ukraine Scholarship Competition
As a founding member of the Leadership Council on Legal Diversity (LCLD), DLA Piper joined forces with other law firms and corporate legal departments to support the '1L LCLD Scholars Program'. Since the Program began in 2011, over 180 law school students have participated across the US and there are over 60 law firms and corporations committed to participating in the Program alongside our firm this year.
The All-Ukraine Scholarship Competition for law students is now entering its sixth year as a highly regarded national academic/business partnership. Through an essay competition, the project provides an opportunity for any Ukrainian law school student to win either an internship in one of our global offices or a monetary scholarship to put towards their student fees.
Austria Career Insight
Our partnership with ELSA
Twice a year DLA Piper runs a half-day event for students and young graduates in our Vienna office, in order to help them gain a greater understanding of their future career opportunities within the legal profession. During the Career Day the students participate in an interactive panel with representatives from across the different practice areas of our firm. The session is aimed at providing context to the different areas of law, through giving examples of the types of cases our lawyers work on, the sectors their clients represent and the skills that they find most valuable in their roles. Following the panel discussion, the students are given the opportunity to take a career aptitude test, so that they can map their skills against the practice areas that interested them.
The DLA Piper and ELSA International partnership will offer ELSA members access to BIL projects and DLA Piper lawyers' expertise on a variety of different topics. It will also provide opportunities for DLA Piper lawyers to communicate with the new generation of future lawyers, have an impact on society, and initiate change. The BIL Programmes include mentoring schemes, Moot Court Competition mentoring and specialised legal research guidance. ELSA members will also have the opportunity to shadow a Corporate Responsibility professional learning how pro bono projects are developed and conducted.
Mooting Competitions for UAE Students
As only Arabic law is taught in UAE universities, gaining access to experience in international law is integral to the success of UAE law students understanding the wider legal sector and securing jobs within international firms. DLA Piper has been
SYNERGY magazine
Improving equality, diversity and inclusion within the legal profession is a significant global priority for DLA Piper and Break into Law enables us to communicate our collective impact on this key issue within our sector. Additional information about DLA Piper's Break Into Law programme can be found here www.dlapiperbreakintolaw.com
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Partners' & Externals' Perspective
The protection and safety of journalists:
The case-law of the European Court of Human Rights
Philip Leach Professor of Human Rights
I. Introduction
Law at Middlesex University
The work of the Council of Europe’s Steering Committee on Media and Information Society (CDMSI) has led to the adoption by the Committee of Ministers in April 2014 of a Declaration on the protection of journalism and safety of journalists and other media actors.1 This article (which is based on a report prepared for the Council of Europe2) outlines the relevant principles which have been established in the case-law of the European Court of Human Rights. & Director of the EHRAC
II. The safety of journalists
If the state is aware of threats or intimidation perpetrated against journalists or media organisations, the state may be under a duty to take protective measures and to carry out an effective investigation into such allegations.3 II.I. The duty to protect life
The positive obligation to take preventive measures under Article 2 of the Convention (the right to life) will arise if it is established that:
…the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individualor individuals from the criminal acts of a third party, and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk…4 In assessing the authorities’ knowledge of any such risk to life, the Court may take into account the extent to which bodies such as prosecutors ought to have been aware of the vulnerable position which journalists may be in vis-à-vis those in power (including, for example, journalists covering politically sensitive topics).5 There was a violation of Article 2 in Dink v Turkey6 which concerned the murder of the journalist Hrant Dink, who had been the subject of intense hostility from extreme nationalists as a result of his newspaper articles on Turkish-Armenian relations. The Court found that the security forces could reasonably be considered to have been informed of the hostility towards Mr Dink, that the law enforcement bodies were informed of a real and imminent threat of assassination, and yet they failed to take reasonable measures to protect his life. II.II. The duty to investigate fatalities
Article 2 also requires that there should be an effective investigation into an alleged unlawful killing, by both 1 See: https://wcd.coe.int/ViewDoc.jsp?id=2188999&Site=CM&BackCo lorInternet=C3C3C3&BackColorIntranet=EDB021&BackColorLogged =F5D383 2 See: http://www.coe.int/t/dghl/standardsetting/media/Belgrade2013/ MCM(2013)012_en_Leach_ProtectionofJournalists.pdf 3 Özgür Gündem v. Turkey, No. 23144/93, 16.3.00, para. 41.
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4 5 6
See, e.g., Kılıç v Turkey, No. 22492/93, 28.3.00, paras. 162-163. See, e.g., Gongadze v Ukraine, No. 34056/02, 8.11.05, para. 168. Nos. 2668/07, 6102/08, 30079/08, 7072/09 & 7124/09, 14.9.10.
Partners' & Externals' Perspective state agents and non-state actors.7 For example, in Kılıç v Turkey8 there was a violation of Article 2 because of the limited scope and short duration of the investigation into the killing of a newspaper journalist. Where it is plausibly claimed that a killing was related to journalistic activities, Article 2 may require the authorities to take adequate steps to investigate such a possibility.9 In addition, Article 13 requires a thorough and effective investigation capable of leading to the identification and punishment of those responsible for the deprivation of life, including effective access for the complainant to the investigation procedure.10 II.III. The prohibition of torture and ill-treatment (Article 3)
There was a violation of Article 3 in Najafli v Azerbaijan where a journalist was found to have been beaten by the police during the dispersal of a political demonstration, which he attended in order to report on: the use of force was held to be ‘unnecessary, excessive and unacceptable’.11 Furthermore, the Court has held that any measures which prevent journalists from doing their work may raise issues under Article 10 of the Convention (the right to freedom of expression).12 The applicant journalist in Najafli had been wearing a journalist’s badge on his chest and told the police officers that he was a journalist. The use of excessive force while he was performing his professional duties was therefore also held to violate Article 10. Article 3 also incorporates obligations on the authorities to prevent and investigate ill-treatment. Thus, investigations of such allegations must be diligent and effective.13 7 See, e.g., Yaşa v Turkey, No. 63/1997/847/1054, 2.9.98, para. 100. 8 No. 22492/93, 28.3.00. 9 Adali v Turkey, No. 38187/97, 31.3.05, para. 231. 10 See, e.g., See, e.g., Yaşa v Turkey, No. 63/1997/847/1054, 2.9.98, paras. 112-115. 11 Najafli v Azerbaijan, No. 2594/07, 2.10.12, para. 39. 12 Gsell v Switzerland, No. 12675/05, 8.10.09, para. 49. 13 See, e.g., Mehmet Eren v Turkey, No. 32347/02, 14.10.08, paras. 49-56.
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III. Support for investigative journalism
The Court recognises the particular role played by investigative journalists.14 Any measures which prevent journalists from doing their work may raise issues under Article 10.15 For example, in Gsell v Switzerland16 a journalist was prevented by a general police ban from gaining access to the World Economic Forum in Davos, on which he was planning to write an article. The use of a general ban to exclude anyone wishing to travel to Davos was found not to have a sufficiently explicit legal basis, and therefore the interference with the journalist’s right to freedom of expression was not ‘prescribed by law’. III.I. Access to information
The Court has explicitly recognised the importance of journalists’ right of access to information: the gathering of information is an essential preparatory step in journalism and is an inherent, protected part of press freedom.17 Therefore, the Court will apply ‘the most careful scrutiny’ when measures are taken which ‘are capable of discouraging the participation of the press….in the public debate on matters of legitimate public concern…’.18 Publication of information and comment about court proceedings is acknowledged to be an important media function, especially in the field of criminal justice.19 Seeking historical truth is considered to be an integral part of freedom of expression, and the Court has also emphasised that debate on the causes of acts of particular gravity (for example, war crimes or crimes against humanity) should be able to take place freely.20 14 Martin and others v France, No. 30002/08, 12.4.12, para. 80. 15 Gsell v Switzerland, No. 12675/05, 8.10.09, para. 49. 16 Ibid. 17 Dammann v Switzerland, No. 77551/01, 25.4.06, para. 52. 18 Társaság a Szabadságjogokért v Hungary, No. 37374/05, 14.4.09, para. 26. 19 See, e.g., Worm v Austria, No. 22714/93, 29.8.97. 20 Giniewski v France, No. 64016/00, 31.1.06, para. 51.
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Partners' & Externals' Perspective III.II. Protection of Journalists' sources
The importance of the principle of the protection of a journalist’s sources has long been recognised in the jurisprudence of the European Court. The right is not ‘a mere privilege to be granted or taken away depending on the lawfulness or unlawfulness of their sources, but is part and parcel of the right to information, to be treated with the utmost caution’. 21 Accordingly, orders requiring the disclosure of journalists’ sources must be justified by an overriding requirement in the public interest.22 In Sanoma Uitgevers B.V. v Netherlands,23 the Grand Chamber of the Court assessed the police seizure of a CD-ROM containing photographs of illegal street racing taken by journalists for a car magazine, owned by the applicant company. The basis for the seizure was the Code of Criminal Procedure; however, the quality of the domestic law was not considered sufficient to pass the ‘prescribed by law’ test. The Court emphasised that orders requiring journalists to disclose their sources must be subject to the guarantee of review by a judge or other independent and impartial decision-making body. There was a violation of Article 10 in Goodwin v UK24 because of a disclosure order which required a journalist to reveal the identity of a person who had provided him with information on an unattributable basis, and as a result of the fine imposed for refusing to do so. Article 10 has also been found to have been violated as a result of searches carried out at journalists’ offices or homes, seeking to identify civil servants who had provided them with confidential information.25 Search and seizure operations must also comply with Article 8 of the Convention (the right to respect for private and family life, home and correspondence).26 The Court has acknowledged that secret state surveillance may result in an interference with a journalist’s freedom of expression if there is a danger that communications for journalistic purposes may be monitored, as this could mean that journalistic sources might be disclosed or deterred from providing information by telephone. The confidentiality of sources may also be impaired by the transmission of data to other authorities, by their destruction or by the failure to notify the journalist of the surveillance measures.27
21 22 23 24 25 26 27
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Tillack v Belgium, No. 20477/05, 27.11.07, para. 65. Goodwin v UK, No. 17488/90, 27.3.96, para. 39. No. 38224/03, 14.9.10. No. 17488/90, 27.3.96. See, e.g., Roeman and Schmit v Luxembourg, No. 51772/99, 25.2.03. Ibid.,paras. 64-72. Weber and Saravia v Germany, No. 54934/00, dec. 29.6.06, para. 145.
IV. The prevention of intimidation of journalists by the misuse of law IV.I. Defamation and other criminal or civil proceedings
The instigation of criminal or civil proceedings against journalists or media organisations, including defamation, will be subject to the requirements of Article 10. The Court has frequently pointed to the ‘dominant position’ of State authorities, meaning that they must be restrained in resorting to criminal proceedings, particularly where there are other available means of rebuttal.28 Prior restraint of the media will require particular justification.29 Any mechanism of prior restraint must be subject to a legal framework which provides ‘tight control’ over the scope of any restrictions and which also ensures that there is an effective system of judicial review to prevent abuse of power.30 According to the Court, journalists should be free to report on events based on information gathered from official sources without further verification.31 The Court has also held that there will have to be particularly strong reasons for punishing journalists for assisting in disseminating the statements of others.32 The Court recognises that media operations may be time-critical: News is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest.33 Although the Court has reiterated that the use of criminal law sanctions in defamation cases is not in itself disproportionate, the imposition of such sanctions will be taken into account in considering proportionality.34 Imprisonment is recognised as being a particularly severe sanction.35 The Court has taken express note of a Resolution of the Parliamentary Assembly of the Council of Europe relating to the decriminalisation of defamation - urging member States whose legal systems still provide for prison sentences for defamation, to abolish them without delay.36 Accordingly, the imposition 28 Castells v Spain, No. 11798/85, Series A, No. 236, 23.4.92, para. 46. 29 See, e.g., Observer and Guardian v UK, No. 13585/88, 26.11.91, para. 60. 30 Ekin Association v France, No. 39288/98, 17.7.01, paras. 58 & 61. 31 See, e.g., Selistö v Finland, No. 56767/00, 16.11.04, para. 60. 32 See, e.g., Jersild v Denmark, No. 15890/8, Series A, No. 298, 23.9.94, para. 35. 33 Sanoma Uitgevers B.V. v Netherlands, No. 38224/03, 14.9.10, para. 70. 34 See, e.g. Radio France and Others v France, No. 53984/00, 30.3.04, para. 40. 35 Mahmudov and Agazade v Azerbaijan, No. 35877/04, 18.12.08, para. 49. 36 Mariapori v Finland, No. 37751/07, 6.7.10, para. 69 - making reference to Towards decriminalisation of defamation, Resolution 1577 (2007) of the Parliamentary Assembly of the Council of Europe, 4 October 2007.
Partners' & Externals' Perspective of a prison sentence for a press-related offence will only be compatible with Article 10 in exceptional circumstances, notably where other fundamental rights have been seriously impaired (such as, for example, in cases of hate speech or incitement to violence).37 IV. II. Anti-terrorism measures
The Court recognises that the media does have particular responsibilities in relation to conflict situations,38 however, any measures imposed under anti-terror legislation which are restrictive of the right to freedom of expression must be sufficiently prescribed by law, must pursue a legitimate aim and must be proportionate.39 The arbitrary application of criminal law provisions relating to terrorism will not be acceptable to the Court: Such arbitrary interference with the freedom of expression, which is one of the fundamental freedoms serving as the foundation of a democratic society, should not take place in a state governed by the rule of law.40 An interference with a media organisation’s freedom of expression cannot be justified simply by the publication of interviews with, or statements by, a member of a proscribed organisation, or indeed on the basis that such statements contain views which are strongly disparaging of government policy.41 However, the limits of the extent of the right to freedom of expression may be crossed where an article is found to incite violence, armed resistance or an uprising, or which amounts to hate speech.42 There was no violation of Article 10 in Falakaoğlu and Saygılı v Turkey,43 which concerned the applicants’ convictions un 37 Fatullayev v Azerbaijan, No. 40984/07, 22.4.10, para. 103. 38 Sürek and Özdemir v Turkey, Nos. 23927/94 and 24277/94, 8.7.99, para. 63. 39 See, e.g., Özgür Gündem v. Turkey, No. 23144/93, 16.3.00, paras. 56-57 et seq. 40 Fatullayev v Azerbaijan, No. 40984/07, 22.4.10, para. 124. 41 See, e.g., Sürek and Özdemir v Turkey, Nos. 23927/94 and 24277/94, 8.7.99, para. 61. 42 See, e.g., Gerger v Turkey, No. 24919/94, 8.7.99, para. 50. 43 Nos. 22147/02 and 24972/03, 23.1.07.
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der anti-terrorism legislation for publishing in a newspa per a declaration made by a group of detainees held on charges of belonging to an armed terrorist group, without any additional editorial analysis. The declaration appealed to public opinion to mobilise ‘support’ for an action to ‘demolish’ F-type prisons—an action that had already caused violent clashes between detainees and the security forces, leading to the loss of lives. A personal search of a journalist carried out by the police or security forces under prevention of terrorism legislation may raise various issues under the Convention. In Gillan and Quinton v UK44 a journalist intending to film public protests concerning an arms fair was searched by the police and told to stop filming. Being stopped and searched (even for a few minutes) was found to constitute a ‘deprivation of liberty’ under Article 5(1) of the Convention. Article 8 was held to be breached as the powers invoked45 were found to be neither sufficiently prescribed nor subject to adequate legal safeguards to prevent abuse.
44 45
No. 4158/05, 12.1.10. Sections 44 and 45 of the Terrorism Act 2000.
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Partners' & Externals' Perspective
The idea of toleration and its contemporary consequences
Toleration: Opportunities and strains of a historic European ideal
T
he idea of toleration is one of the most wonderful Dr Prakash Shah Reader in Culture and Law and path-breaking achieDirector, GLOCUL, vements of Western cultural deDepartment of Law, QMUL velopment. It is Western culture’s way of coming to terms with the religious diversity and dissent that was amplified as a result of the Reformation. In the wake of the Reformation, the idea of toleration became a key means by which European intellectuals could conceive of a modus vivendi between different religious groups. Among other ideas that sprang from toleration include the freedom of thought, conscience and religion and a reworking of the religious idea of a realm of the secular, allowing different groups a common space within which interactions among different people belonging to different faith groups could be facilitated. In being further developed during the Enlightenment, toleration was extended to groups that were originally not thought of as being encompassed by it. For instance, the leading 17th century English thinker, John Locke, considered toleration to be available to Protestants only, but it was extended to encompass other groups in later centuries. In France, the idea of a separate Jewish nation was abandoned and Jews became citizens of the French nation. Locke’s ideas have influenced much of liberal thought, not least in Anglospheric countries, and their contemporary ideas of multiculturalism are rooted in the framework of toleration. At GLOCUL: The Centre for Culture and Law, at Queen Mary, University of London, one of the research agendas
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we want to develop is to study more closely how toleration and multiculturalism are related to each other and how they manifest differently in different politico-legal and social contexts. It is well-known that different countries in Europe today have different approaches to the question of cultural diversity. In some countries, such as the United Kingdom, the home of John Locke, ideas of toleration and multiculturalism are well entrenched and are crucial to informing and shaping both legal and policy, as well as less formal, approaches to cultural diversity. Other counties where ideas of multiculturalism are well entrenched include Holland and Sweden. All three countries have long histories of accommodating different religious groups within legal and policy frameworks. However, not all European countries have such well-established frameworks. At GLOCUL, we are currently hypothesizing that post-Reformation doctrinal thinking about toleration within particular politico-legal contexts within Europe has influenced the uneven entrenchment of toleration and the other ideas that have flowed from it. What we refer to as ‘internal challenges’ to toleration therefore arise. And these challenges will entail questions for research such as: What places in Europe were the most active in thinking about toleration? What socio-cultural contexts were they faced with that demanded such thinking? How did such thinking allow them to develop (or not) ideas of toleration that extended to groups wider than the original beneficiaries? What were the links between toleration and secularism in different countries or regions? How can answers to these questions allow us to explain how legal and policy
Partners' & Externals' Perspective
approaches towards newer forms of diversity have taken shape? In turn, the answers to these questions should be able to help us explain the uneven development of toleration and multiculturalism in Europe today. A large part of the ‘internal challenge’ can then have some practical consequences such as thinking about how best to promote, within an increasingly interlinked Europe, with different nation state and regional histories, ideas of toleration in a way that is relevant to contemporary circumstances of cultural diversity. Part of the thinking here is that it may not help very much if reference to traditions of pluralism is made to other parts of the world and to assume that some easy solutions can be picked up elsewhere and transplanted to Europe. GLOCUL currently takes the position that answers to diversity will have to be located first and foremost in the culture that Europe is and it is by building on existing achievements that more fruitful and longer lasting results can be reached. Then there are some ‘external challenges’ to toleration which also have to be faced at both policy and research levels. In some ways, the question of cultural diversity is most focused on the question of religious diversity and the status of Islam in particular. Although it need not be the case that cultural diversity should be focused in this manner it seems obvious that much of the funding for research has been directed to studying the challenges of religious diversity and, within that, the challenges posed by the large scale presence of Muslims in Europe is studied a great deal from different
SYNERGY magazine
disciplines and perspectives in the human sciences. It is not only a question of having to come to terms with, study and accommodate in policy terms the presence of a religious community which was once regarded as the chief enemy of European Christendom, as Edward Said among others have pointed out. A deeper problem which Europeans now face is to extend concepts and policy frameworks entailed by ideas such as toleration and multiculturalism to a religious group which lacks doctrinal thinking about toleration in the way European culture has developed. While many European Muslims would pay rhetorical obeisance to principles such as toleration, it is far from clear that such ideas have been
“
A deeper problem which Europeans now face is to extend concepts and policy frameworks entailed by ideas such as toleration and multiculturalism to a religious group which lacks doctrinal thinking about toleration in the way European culture has developed.
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Partners' & Externals' Perspective well-rehearsed intellectually within Islamic cultures. If structures of toleration existed, as in the example of the most-cited millet system, it seems that they were more pragmatic rather than having an intellectual or doctrinal basis. The contemporary problems minorities in the Muslim world experience are evidence that toleration is not well established in Islamic thinking. If this is so, it begs the question: to what extent will Europe be able to convince Muslims of the virtue of ideas such as toleration which do not already have an established place in their own heritage? Will Muslims in Europe simply absorb European ideas of toleration as time goes on? The contemporary evidence does not point to Muslims buying in to European ideas of toleration. Muslims in Europe appear to be advocating that their way of doing things must be accommodated regardless of the interests and claims of other groups in society. The recent scandals regarding schools in different parts of England which have a
“
predominant number of Muslim children and consequently where Muslim parents and governors have a greater say in the way schools are run show that Islamic norms get entrenched to the potential exclusion of other communities. Examples in European countries have shown that restrictions are being imposed in terms of gender roles and sexual morality, artistic freedoms, and the expression of critical opinion from which even universities are at risk, as well as threats to life. More research about such problems is needed to identify just what has been occurring and why and, ultimately, whether there are lessons to be learnt about the success or otherwise of important ideas such as toleration and all that they entail both historically and in the future. The external challenges to toleration will be of more importance in years to come as demographic trends, including migration, will result in the increasing influence of Islamic norms upon European culture, while Europeans will have to make important decisions about the direction in which their culture travels.
The external challenges to toleration will be of more importance in years to come as demographic trends, including migration, will result in the increasing influence of Islamic norms upon European culture...
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Partners' and Externals' Perspective
The software market in the EU after the Usedsoft judgement
Exhaustion and downloaded software
O
n July 3, 2012, the Court of Justice of the EuroPHD, Author of the book pean Union (CJEU) han'Trademarks, Free Trade, A ded down its decision on UsedGlobal Analysis' Soft GmbH v. Oracle Int’l Corp. (“UsedSoft”), ruling that the users of online services are entitled to resell copies of computer programs legally downloaded from the Internet without the rightholders’ consent. Lazaros G. Grigoriadis
The UsedSoft decision is expected to have a great impact on the EU computer program market. The decision’s main and direct consequence is that it provides users of online services with an option, the legality of which has been controversial to date (i.e., the possibility of users reselling permanent copies of computer programs that were created on material media by the users in question with the right holders’ consent). Still, the benefits of the decision for computer program users likely will not apply to computer programs that will be released in the near future. This is because the decision is expected to lead computer program manufacturers to revise established methods as well as adopt new methods of software distribution with a view to reducing radically the computer program copies covered by the rule of Art. 4(2) of Directive 2009/24/EC.
Usedsoft consequences for users of computer program copies
Regarding users of computer program copies, UsedSoft makes it clear that a computer program user who created a copy of the program within the framework of an online sale with the consent of the rightholder has the same rights as the user who acquired a copy of the same program on a material medium (e.g., CD-ROM, DVD). That means that the first of the above users is able to resell the copy he acquired without the consent of the rightholder being necessary for the resale. This also paves the way for intra-brand market competition1 between computer program copies that are made available online through digital networks. More specifically, UsedSoft “abolishes” rightholders’ monopolies on digital transmissions that create permanent copies of computer programs on material media because such copies may now be resold at lower prices than the rightholders’ prices. Furthermore, there is no longer any doubt about the possibility of reselling media holding permanent copies of computer programs that were created by users of online services with the consent of the rightholders.
1
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In a copyright context, intra-brand competition has the meaning of competition between copies of the same copyrighted product. GLOS SARY OF TERMS USED IN EU COMPETITION POLICY (2002).
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Partners' and Externals' Perspective almost certain that those methods will not be applied on the basis of the current contract terms of the software market. In fact, following UsedSoft, computer program manufacturers are expected to use the following software distribution models: a) Grant of a right to use a computer program copy for a limited period (“subscription-based model”). According to UsedSoft, application of the rule in Art. 4(2) of Directive 2009/24/EC requires the grant of a right to use the copy of a computer program for an unlimited period. However, a use right of an extremely long duration (e.g., fifty or seventy years) does not seem to invalidate the application of the above rule since it is obvious that the time restriction aims at circumventing the said rule.
Pursuant to UsedSoft, reselling such copies is legal, so the resale of media holding such copies should also be considered legal. Usedsoft consequences for computer program maufecturers
On the other hand, regarding computer program manufacturers, UsedSoft will likely incentivize them to establish new software distribution methods. In order for manufacturers to deny the benefits accorded by UsedSoft to users of computer program copies, it is very likely that they will renounce, to a great extent, the sale and the grant of a right to use a program copy for an unlimited period in return for payment of a fee corresponding to the copy’s economic value as software distribution methods. Even if some computer program manufacturers continue to apply the above software distribution methods, it is
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b) Use of the model “Software as a Service (SaaS)” (also known as “on-demand software”). Based on UsedSoft, application of the rule in Art. 4(2) of Directive 2009/24/EC requires the transfer of the right of ownership in a copy of a computer program. If the transfer of the ownership right is not ascertainable, the above provision cannot be applied regardless of whether a user gained access to the functions of a computer program with the consent of the rightholder. Therefore, in order to avoid the possibility of applying the above provision to copies of computer programs that are distributed digitally, the solution for the manufacturers of computer programs could be the “Software as a Service (SaaS)” model, which is already being increasingly used.2 Within the framework of the aforementioned model, the rights to use the applications are not bought, but the user acquires the right to use software by paying a fee, which depends on either the duration of its use (time-based) or on the subscription that the user chose for his access to that software. The user has access through the Internet and a common web browser.3 It is evident that the “Software as a Service (SaaS)” mo2 See Larry Barret, SaaS Market Growing by Leaps and Bounds: Gartner, ( July 27, 2012), http://www.datamation.com/entdev/article.php/3895101/SaaSMarket-Growing-by-Leaps-and-Bounds-Gartner.htm; Gartner Newsroom, Gartner Says World-wide Software as a Service Revenue Is Forecast to Grow 21 Percent in 2011 ( July 7,2011), http://www.gartner.com/it/page.jsp?id=1739214&M=6e0e6b7e2439-4289-b697-863578323245; Tomasz Targosz, The Economic Perspective: Exhaustion in the Digital Age, GLOBAL COPYRIGHT: THREE HUNDRED YEARS SINCE THE STATUTE OF ANNE, FROM 1709 TO CYBERSPACE 337, 346 (Lionel Bently & Uma Suthersanen & Torremans Paul eds., 2010). 3 For “Software as a Service (SaaS)” see Gerald Blokdijk, SAAS 100 SUCCESS SECRETS—HOW COMPANIES SUCCESSFULLY BUY, MANAGE, HOST AND DELIVER SOFTWARE AS A SERVICE (SAAS) (2008); Melvin B. Greer, Jr., SOFTWARE AS A SERVICE INFLECTION POINT: USING CLOUD COMPUTING TO ACHIEVE BUSINESS AGILITY (2009); Ivanka Menken, SAAS—THE COMPLETE CORNERSTONE GUIDE TO SOFTWARE AS A SERVICE BEST PRACTICES CONCEPTS, TERMS, AND TECHNIQUES FOR SUCCESSFULLY PLANNING, IMPLEMENTING, AND MANAGING SAAS SOLUTIONS (2008).
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del does not entail transfer of the right of ownership and, as a result, in light of this method of software distribution, the issue of applying the rule in Art. 4(2) of Directive 2009/24/ EC does not arise.
users rather than a single user constitutes another option for computer program manufacturers in their attempts to restrict the application of Art. 4(2) of Directive 2009/24/EC.
c) Grant of a right to use a computer program copy for an unlimited period to a large number of users (“enterprise/block licensing”).
d) Grant of a right to use a computer program copy for an unlimited period and use of anti-piracy protection technical means (“technical solution”).
According to UsedSoft, the buyer who acquired the right to use the copy of a computer program for an unlimited period and for a determined number of users is not entitled to divide the right of use he acquired by reselling that right to a number of users determined by m. Based on this clarification, it is obvious that the resale of the right to use a permanent copy of a computer program for more users is more difficult than reselling the right to use a permanent copy of the same program for one user. This is because the first resale requires that the acquirer needs a right to use covering the same number of users. Therefore, the grant of rights to use computer program copies for an unlimited period for a large number of
Following UsedSoft, it is almost certain that the use of technical protection means, which will significantly increase the likeliness that the reseller of a computer program copy acquired via Internet download can no longer use his copy. It is clear in UsedSoft that the CJEU favors the use of such technical means by rightholders. Nevertheless, employing anti-piracy protection might result in price increases for the rights to use computer program copies for an unlimited period. Thus, a possible decrease in demand for such rights and a reduction of cases covered by the exhaustion of the distribution right provision under Directive 2009/24/EC could occur.
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World Forum for Democracy Date: 3rd - 5th November 2014 Place: Strasbourg, France Working Language: English
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CBL International brings ELSA to Dubai
Celebrate with us in Dubai: CBL International and ELSA 5 years of partnership
E
LSA and CBL International are celebrating a successful partnership: Since five years, ELSA members have been experiencing the excellence of CBL International study abroad programmes in China and Dubai. Join our celebration this winter in Dubai, and party with us into the New Year!
Idil Buke Civelek
Aqila Gull Mian
Vice President for Marketing
Vice President for Marketing
ELSA International 14/15
ELSA Oslo 14/15
Aqila Gull Mian, VP Marketing for ELSA Oslo from Norway, has been participating in CBL International Dubai Law School last year. Synergy has asked her about her experiences in the Middle East, and why she recommends this unique programme. CBL International is an experienced provider of academic programmes. Since 2007, CBL International Dubai Law School offers it’s delegates the chance to get high level lectures from international faculties, meet interesting lawyers and managers, and build up ties with multinational law-firms and companies. You have been joining CBL International Dubai Law School winter programme recently. How was it to start the New Year at the Gulf ? It was a life time experience. I never had any New Year celebration that comes near. Dubai has set another world record with the biggest fireworks in history this year, so it was literally impossible not to get a glimpse. Who knows what they will do this year… This sounds like a great party, but what about the legal parts of the programme? What is the academic focus of the course? 28
The seminars and lectures cover various aspects of the legal system of Dubai and the United Arab Emirates as a country. We learned about Arab business law and how to do business in the free trade zones. I was particularly interested in Sharia law, and how to comply with it in Islamic banking and finance.
Wouldn’t it be possible to study this at home in Norway? I am sure it would be possible, but being able to study Sharia Law in a Muslim country makes the learning experience so much more different. With CBL International, we have been gained access to law-firms, companies and institutions, and to their managers. It is a complete different story to talk to people that are professionals, immersed in the live and culture of the region, sharing their first hand experiences. Also, we have been participating in excursions and company visits that did not have a solely legal focus. This is very important to get a broader understanding about how business life works in the UAE. We have been learning about hospitality management, and logistics and aviation. All topics that I didn’t know much about before, and that still are very much connected and interacting with Arab and international business law. Any plans to go back to Dubai soon? Yes, I have fallen in love with Dubai and plan to revisit soon. I am also applying for an internship at the Courts of Dubai International Financial Centre, which we have visited as part of the CBL International programme. I know that other former participants have returned to Dubai for an internship, and I hope it will work out for me, too.
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International FOCUS Minority Rights
STEP - Student Trainee Exchange Programme
The facilitating factor of the global employment for already 30 years
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he 21st century with its tremendous number Dariia Oliinyk of intergovernmental, Vice President for STEP interuniversity’s partnerships, ELSA International 14/15 thousands of exchange programmes operating in almost every corner of the world, global corporations and accordingly global movement of labour force, is erasing borders among countries and allows people to travel, learn different cultures, feel a global citizens in one world. Naturally, some obstacles still remain. But try to compare current obstacles with for example those which existed in early 80’s? Dark times from our perspective, right? What do you refer to when think about this historical period? The Iron Curtain, countries’ blocks, emigration restrictions… Surprisingly, but exactly those years gave a birth to one of the core projects of our association which allows young lawyers and law students to get professional experience abroad – the Students’ Trainee Exchange Programme (STEP). First three traineeships were organized in 1984, exactly 30 years ago! The STEP 30th anniversary is a good chance for us to look back, to evaluate our ups and downs, to realize the hidden potential of the area and to get inspiration for its further development. What is so special about this programme today, when there are no real borders between most of the European countries, you might ask? Even though there are many exchange programmes operating nowadays, I am sure STEP is unique. And that is why: 30
STEP changes a mind-set. And I am talking not only about the perspective of the trainees that are experiencing new country, new professional environment, new culture, new legal system etc. STEP positively influences the mind-set of the hosting employer and the hosting ELSA local group. A multicultural work environment enables employees to understand global market trends and tendencies as well as the new cultures. Multiculturalism brings diversity – of genders, traditions, nationalities… But what is most important – it brings variety of ideas - diversity of mind! A culturally diverse as well as young work environment brings curiosity, positive energy and creative atmosphere to the company or organization. This might be used as a refreshment trick for the constant staff, a knowledge exchange platform between different generations. STEP is all about leadership and ambitions. STEP attracts the most ambitious law students from our association.
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Multiculturalism brings diversity - of genders, traditions, nationalities... But what is important, it brings variety of ideas - diversity of mind!
Council of Europe and UNHRC Strasbourg
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STEP is the direct link between today's business and tomorrow's leaders, the Millennial Generation or Generation Y. onal experience. It’s not necessary to remind you that ELSA Network includes also countries which are not part of the European Union. STEP equally treats the applicants from all ELSA national groups, eliminating inequality in recruitment opportunities between them. Last but not least, STEP internally is usually the invisible network of more than 100 SETP officers who are cooperating throughout Europe in order to ensure successful realization of the traineeships organised worldwide. It might be hard to believe, but accomplishment of a single traineeship requires the coordinated efforts of many officers at all ELSA levels. These are people whose hard work rarely is publically recognised since STEP project is long lasting and does not have an annual event to call all the people who work on it behind the scene for the applause. That’s why I want to use the opportunity to express my gratitude to STEP Officers on all levels and of all terms for their tremendous contribution for the successful operation and development of this area through all these years. Happy anniversary!
From this point of view STEP is the direct link between today’s business and tomorrow’s leaders, the Millennial Generation or Generation Y. STEP trainees are bright, ‘can-do’ people who joined ELSA in order to advance their skills, develop their career. Simultaneously they are not afraid of new challenges, ready to move to the completely new country for them, change the surrounding, adjust to new culture, traditions, meet and deal with new people. STEP inspires. Because STEP trainees are always ready to grab new challenges given to them, easily leave their comfort zones, they tend to think out of the box. Simultaneously they widen the vision of people around them, leading to new ideas and a lively work spirit. STEP fairly allows the ELSA members from different countries to travel abroad and gain the professi-
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International FOCUS
Moot at the WTO and the European Court of Human Rights!
This year editions of the EMC2 on WTO law and the EHRMCC are launched, and open for registration.
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ne of the points mentioned in the purposes of Deputy Vice President for ELSA is to contribute to Moot Court Competitions legal education. As an organisation ELSA International 14/15 for law students and young lawyers, we want to bridge the gap between theory and practice and with the help of our Network we encourage law students to take part in our academic activities. ELSA has long-standing experience in organising moot court competitions on both national and international level. I am honoured to be a part of the development of our moot court competitions and to launch the 13th edition of the ELSA Moot Court competition (EMC2) on WTO law, and the 3rd edition of the European Human Rights Moot Court Competition (HRMCC). Tanja Sheikhi
Since 2002 ELSA has organised the ELSA Moot Court Competition on WTO law. The moot court is a simulated hearing of the Dispute Settlement System of the World Trade Organization, and deals with international trade law issues. The competition has strong, long term financial contributors and receives a lot of academic support from the World Trade Organization itself. With selection rounds all over the world: America, AsianPacific, Europe and Africa, the students get the chance 32
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As the biggest law students' association, we are proud of organising moot court competitions which contribute to the legal education of law students not only in Europe - but all around the world. to meet other law students and exchange both cultural and academic experiences. After 12 years, the competition reached its goal and we were able to establish the first regional round in Africa last year. The competition is growing and this shows the commitment ELSA has to the EMC2 and its development. The best teams of each region will be qualified for the Final Oral Round, taking place in May/June each year at the WTO headquarters in Geneva, Switzerland. How often do law students get the chance to present their legal skills in front of the best WTO law experts? Thus, ELSA is extremely happy to provide this opportunity for students and to put theory into practice. By participating in the competition, law students will not only deepen their understanding
International FOCUS
of law, they will also practice their skills outside the lecture halls of their universities. Participating in the ELSA Moot Court has helped me to explore and maximize my potential. I experienced a lot of challenges which helped me to grow bigger and it showed me how to be a good researcher. It helps me to pave the way for my future career. Team member from Africa, 12th edition of EMC2 I believe that participating in the ELSA Moot Court Competition meant a lot to me in terms of learning how to express myself in a diplomatic way. I also learnt how to work together with others to achieve a common goal. Finally and most importantly, the chance to meet new people from all over the world. Team member from Latin America, 12th edition of EMC2 But that is not all. In cooperation with the Council of Europe, ELSA also organises the European Human Rights Moot Court Competition (HRMCC). The moot court was established two years ago, and it is open to all law students in ELSA members’ countries as well as in Council of Europe Member Countries. The competition simulates the procedure of complaints to the European Court of Human Rights. Participating teams will examine a fictive case, and after the written round, the 16 best teams will compete in the Final Round that takes place at the European Court of Human Rights in Strasbourg. Fulfilling the purposes of ELSA, the competition aims to contribute to legal education and to raise awareness about SYNERGY magazine
human rights among law students in Europe. This opportunity enables students to gain practical experience as well as deepening their knowledge about the use of the European Convention on Human Rights and Fundamental Freedoms. What also makes this particular competition very special, is the prize. Not only will the team members have the opportunity to plead in the facilities of the court, but also the winning team of the competition will receive “the Council of Europe Prize” - a traineeship at the European Court of Human Rights, for a period of one month. It is an amazing opportunity to challenge yourself and find out what are your strengths and weaknesses as an individual and as a member of your team! Team member, 2nd edition of HRMCC It was an incredible experience to meet inspiring people. And it was a great possibility to plead in the actual ECHR facilities in front of actual lawyers from the ECHR Team member, 2nd edition of the HRMCC. As the biggest law students’ association, we are proud of organising moot court competitions which contribute to the legal education of law students, not only in Europe – but all around the world. Face the challenge, build a team and sign up now!
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International FOCUS
'All Different, All Together'
ELSA Day connected us for the second time
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n the 5th of March, the ELSA Network decided to focus on human rights Ana Roce topics for an entire day for the seVice President for Seminars & Conferences cond time in ELSA history. This ELSA International 13/14 year, we decided to have a more specific focus and to organize projects on the topic of protection of Human Rights on the Internet. The ELSA Network recognized this issue as a current problem in most of our countries, a problem that we wanted to address and to give a contribution to in order to find solutions. We did this by organizing 173 different events in 29 countries in our Network and giving our members an opportunity to learn about it and develop their opinion. The portfolio of events was as diverse as our Network, so that everyone could find a type of event suitable for them. To put an even bigger focus on visibility of Human Rights and encourage our Local Groups to focus not only on members but also on the society and community that they are part of, we organized the ELSA Day Visibility Competition. In Czech Republic and Croatia our members were teaching high school students about Human Rights and in the United Kingdom they issued an ELSA Day publication with legal articles. Our winner was ELSA Istanbul with their special event called the ‘Human Body Library’ – an event in which people with different backgrounds came together to openly discuss their status in society, with regards to Human Rights. In Brussels, we organized a Panel Discussion on “Online Hate Speech” in the European Parliament. We were happy to welcome members from all over the ELSA Network who came to participate in our event and share the ELSA Spirit with us. During the panel we presented a comparison of
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For the second time, the ELSA Day connected us as a Network - it showed us how much we can do together and how much we can learn from each other. all national reports made during the Legal Research Group on Online Hate Speech and we also presented the Guidelines on moderating online hate speech that were the outcome of the Oslo conference on Online Hate Speech. The event was cohosted by two MEPs, Mr Andrej Plenkovic (former president of ELSA International in 1993) and Mr Dimitrios Droutsas (former president of ELSA Austria). For the second time, the ELSA Day connected us as a Network - it showed us how much we can do together and how much we can learn from each other. It united us in all our diversity and we proudly stood behind our vision: A just world in which there is a respect for human dignity and cultural diversity. Overwhelmed by this edition, the ELSA Network has already started preparations for the next edition where we will show for the third time that we are all different, all together.
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International FOCUS
IFP - International Focus Programme
Surveillance of internet communication
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roviding the right amount of protection of personal data for their citizen is a Elena Gheorghe poignant issue of today’s modern Member ELSA Romania states. In 2013 the general public has been confronted with news that show the extent to which some countries have adopted a dystopian 1 mass-surveillance approach 2 over their people. These violations clearly go beyond the right enjoyed by states in regards to limiting their citizens’ personal freedom, as it was analyzed in J.J.Rousseau’s “social contract” theory. What role do law and legislators play in the matter at hand? The heated debates regarding the Anti-Counterfeiting Trade Agreement by the EU in 2012 or about the adoption, at the national level, of the Law no. 82/20123 point out the vivid concern of European citizens regarding a potential violation of their right to protection of personal data. The citizens’ concern has been echoed by the decision of different high positioned courts, demonstrating that there are strong juridical arguments against an increase of the states’ power to carefully monitor different channels 1
The situation depicted in some contemporary societies resemble the premises of George Orwell’s “1984”. 2 The recent debates regarding the mass-surveillance activities conducted by the US National Security Agency and the UK Government Communications Headquarters in their respective countries point out to the gross violations of the right of their citizens’ personal data protection: http://edition.cnn.com/2013/11/03/world/europe/edward-snowden-manifesto/ 3 Regarding the retention of general data or data processed by the electronic communications public networks providers and electronic communications for public use providers, that transposes the provisions of Directive 2006/24/EC. It was mocked by the public opinion in Romania by being named “The Big Brother Law.”
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of communication. For example, the Constitutional Court of Romania found the first version of the national law that was supposed to implement the Directive 2006/24/CE unconstitutional, in 2009. Whilst admitting that limitations on the exercise of the right to protection of personal data are constitutionally possible, the Court subjected such constraints to the set of rules found in Art. 8 ECHR and Art. 53 of the Romanian Constitution. Therefore, at a high juridical level the worries of the citizens were sanctioned as relevant, the Law no.82/2012 being ratified only after careful revision. Still, although considered of a paramount importance, a fundamental right4 at a EU level, the right to protection of personal data (especially in regards to the online medium) is not properly safeguarded at the legislative level (EU or nationally-wise). We argue that this could happen simply because the emphasis is put on the prevention from it being used as a commercial asset by companies and businesses and not on its 4
Art. 1 Dir. 95/46/EC
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We argue that by analyzing all the possible means of communication of today's modern man, the one that seems to raise the most important questions is the online environment. protection regarding the state-citizen relationship. Similarly, from a protectionist perspective, at a national level the laws that have been enacted regard the same issue, therefore eluding the scope of the matter-at-hand. From this one could infer that the Courts have indeed intervened in order to avoid gross violations of the right to data protection. The negative decision of the European Union Court of Justice regarding the ratification at a Union-level of the Anti-Counterfeiting Trade Agreement can be considered such a relevant intervention (alongside the example described above regarding the decision of the Constitutional Court of
SYNERGY magazine
Romania). Still, stopping extreme violations from taking place is very different from providing an accurate protection of the right to data protection. It also has to be noted that these juridical decisions have been made under intense pressure from the citizens. As it can be expected, the people do not want their personal conversations to be recorded (as the “Big Brother law” seemed to be aimed at) or their Internet browsing history to be made available to third parties. We argue that by analyzing all the possible means of communication of today’s modern man, the one that seems to raise the most important questions is the online environment. At present, man seems to be relying on various social media tools that, although entertaining, pose many risks regarding one’s right to his personal image or privacy. The concept of “personal content” when writing an article on a blog or on a status message of Facebook has been completely diluted and so have been the lines between what is private and what is public. This raises many juridical issues, because the legislator cannot efficiently protect a right that is based on concepts, which seem not to posses a precise meaning. Indeed, at this point in time, when both national and international Courts have asked themselves – what is public
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International FOCUS Commercial awarness and private when it comes to Facebook (but also MySpace or Twitter), the problem of protecting personal data seems to be complicated by the lack of precise boundaries between these levels. Still, we do not think that states can bring the afore mentioned argument in their favor in order to defend mass-surveillance programs. Although the limits between private and public are at present a bit diffuse, they have not disappeared. Also, the freedom of an environment is an uncontested reality. As John Perry Barlow has stated, from the early nineties, in “A declaration of the independence of cyberspace”, the Governments of today’s states can not rapidly and discretionarily impose their unlimited power over this medium. If at some point, during communist regimes, some means of communication have proven to be easily submitted to surveillance and control, the Internet appears as a medium that still belongs to the people. Of course, all this philosophical and sociological arguments have to receive a juridical “coat” and be transformed into pieces of legislation that can ultimately
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The concept of 'personal content' when writing an article on a blog or a status message on Facebook has been completely diluted and so have been the lines between what is private and what is public. protect the citizens’ right to their protection of personal data. The recent violations that have taken place in the United States and Great Britain are only an example of the actual infringements upon the right to protection of personal data. Today’s means of communication, as modern and efficient as they are, strike us as also extremely vulnerable. The legislator should pick up on these elements that are present at the social level and offer us a just and efficient set of rules.
The 7th intake of IE Law School’s LLM in International Business Law is about to begin! This year the program will start on October 2nd and it will count with interesting updates: • Updated Content The new LLM in International Business Law will focus its attention on cross border transactions and global clients. The length of the programs will still be 10 months but the focus given to international business transactions will be even higher and more practical and international than before. • International Experience Students will still have the opportunity to apply to the Beyond Borders Exchange by the end of the 3rd period. Also, throughout the year they will now have the opportunity to go and visit London and Brussels, the most important and relevant legal centers in Europe, for one week (optional) in which they will visit law firms and legal departments, increase their network and get to know first-hand the legal market and trends which are most important for their professional careers.
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International FOCUS
19 ELSA Summer Law Schools in 2014
Significant development in one of ELSA’s most attractive projects
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hat better opportunities there are to combine a Assistant for ELSA preparatory course in Summer Law Schools the field of your interest with disELSA International 13/14 covering a foreign country, meeting new people from more than 20 different nationalities and going through cultural exchange, than to attend a Summer Law School? Isil Ergec
Aiming to be annual, one week long academic programme on a legal topic, enriched with cultural and social activities, pretty much sums up what an ELSA Summer Law School stands for. Not only do these events satisfy participants in three ways: academically, culturally and socially, but also they have a potential to overwhelm the members of the Organising Committee to the extent that, at the end of an exhausting week which characterises an ELSA Summer Law School, they feel much more connected to the Association In addition to the cultural exchange with the locals of the venue country, meeting law students and young lawyers from various backgrounds and from all over the world results in an exceptional international experience. Thanks to the close cooperation with academic or institutional partners, ELSA Summer Law Schools are acknowledged along by worldwide known law firms, universities and other institutions from various sectors.
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This year ELSA offered 19 Summer Law Schools in 18 different destinations! In other words, 18 ELSA groups worked hard during their terms to bring forth events and to host participants 24/7 for whole one week. Last year we had 12 Law Schools which indicates the improvement in numbers. However, the development is not happening only quantitywise. The feedback, which I personally received from several participants of different Summer Law Schools, is extremely pleasing. One particular feedback, which was given by Philipp Barschkies, participant of Summer Law School on International Business Law in Braga, Portugal, is written in the subtitle of this article. Some others are as follows: “The participants of the Summer Law School in Rotterdam had the chance to discover information they didn't know about Online Privacy and Protection of the Internet and to realize how interesting and sometimes even scary this branch of law can be.” Tereza Domanska, participant of Summer Law School on Online Privacy in Rotterdam, the Netherlands. “Surely none of us can forget La Concha Beach with its amazing and relaxing atmosphere, ‘Bailando’ of Enrique Iglesias, nor the ‘Banana Market’ case.” Didem Birbir, participant of Summer Law School on Competition Law in San Sebastian, Spain.
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International FOCUS “The ELSA Istanbul team managed to strike the impossible balance between the active social programme and one´s ability to stay awake in the early morning lectures; thanks to the engaging speakers that really shared their knowledge and experience of the area and practice with us.” Tibor Korman, participant of Summer Law School on Mergers&Acquisitions in Istanbul, Turkey. “Now, a few weeks afterwards, I can honestly tell it was one of the best experiences in my life so far. Great work by the Organising Committee in realizing the project, stunning academic programme and luxurious social events for the attendants.” Jan Dohnal, participant of Summer Law School on Intellectual Property: Challenges for the Future in Lisbon, Portugal. “Especially the presentation given by a British solicitor on Project Finance was extremely beneficial for me.” Mert Dicle, participant of Summer Law School on Banking&Finance Law in Brasov, Romania. “What I liked about the academic part was choosing speakers not only from the areas of law but we also had lectures with Information Technology and Media experts which enabled me to see the topic from various points of view.” Ondrej Chylek, participant of Summer Law School on Media&Criminal Law in Izmir, Turkey.
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“It provided us a cultural understanding and friendships to last through distances.” Bircan Kilci, participant of Summer Law School on Human Rights and Globalisation in Zadar, Croatia. I would like to take this opportunity, on behalf of ELSA International, to thank all of the organising groups of Summer Law Schools of 2014 for their cooperation. This year, with the support of these ELSA groups, ELSA International promoted all Summer Law Schools in the Network together as one big project on its webpage, so that the potential participants, not only from Europe but rather from all over the world, would be able to see all options at once and thus make healthier decisions on choosing which Summer Law Schools to apply for. Apparently, collective promotion increased the visibility of ELSA and its Summer Law Schools. More persons were reached and more applications were received, both within and outside of the Network. I do not hesitate to express that I am sure, that even more Summer Law Schools will be organised by the enthusiastic ELSA groups in 2015, since there are many groups already planning to do so and as well, more applicants will there be. .
20 th Anniversary of the ELSA Vision
A just world in which there is respect for human dignity and cultural diversity
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Think Global, Act Local - The ELSA Network
3rd ELSA Vienna Law School on Dispute Resolution:
One, Two, Three, Go!
Introduction
From Zero to Hero
Adi Bikic
The ELSA Network offers almost 20 summer law schools all over Europe. One of its most distinguished is the ELSA Vienna Law School on Dispute Resolution. It annually gathers 40 of Europe’s brightest law students and young lawyers in the beautiful and vibrant capital of the historical Habsburg monarchy. This text gives you an exclusive insight into the establishment of the event. Director for Law School ELSA Vienna 13/14
From selfish to selfless
It all began in the spring of 2011. I joined ELSA with the simple goal of completing an internship abroad. After submitting the request for membership I was invited to ELSA Vienna’s members’ meeting, which I ended up attending more or less by complete chance. I had no clue that this meeting would become a turning point in my young life. The group of bright people, led by Tobias Birsak, opened a completely new world to me. Their selfless efforts to contribute to the education of law students and young lawyers fascinated me to such an extent that my selfish wish of completing an internship slipped into the background. Instead, I attended a series of events which enabled me to gain valuable skills and knowledge, travel across Europe, make new friends and collect unforgettable memories. However, soon I began feeling that I had something to give back to this unique network.
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Inspired by the 7th ELSA Istanbul Summer Law School on M&A, I decided to organize an international Summer Law School. My goal was to establish the first annual international event in the thirty year history of ELSA Vienna. In those days ELSA Vienna was attempting to re-establish itself after a few tough years. As a result, many members were sceptical of throwing resources into the organisation of a huge international event lead by a fresher, which I still was at the time. Moreover, the well-experienced members claimed that it is almost impossible to organize such an event in Central Europe, since the organizational costs are much higher and venues less attractive than the seaside cities playing host to the existing Summer Law Schools. Despite the many sceptical voices, I knew I would be able to organize the event if I could convince Tobias to support me. Fuelled by enthusiasm I arranged a meeting with him. Tobias was hesitant, but eventually decided to support the project. His support paved my way, as, in contrast to me, he had both the trust of the Network and plenty of event management experience. After all, he was the one who brought ELSA Vienna back on track. Despite the justified concerns, the ELSA Vienna Law School turned out to become the most successful ELSA project in Austria and one of the most esteemed in whole Network. It exceeded all expectations right from the very first edition. It had the most renowned speakers you
Think Global, Act Local - The ELSA Network could think of, more applicants than any other Summer Law School and a larger budget than ELSA Austria. The Success
Our first analysis showed that most of the summer law schools were on the geographical edge of Europe. They all dealt with substantive topics of law and many organisers focused on their outstanding social program, as opposed to the academic schedule. In order to provide something new to the highly developed Network, we established a law school in the heart of Europe with an outstanding academic programme that focuses solely on procedural issues. To sum up, I believe the event became such a success for three main reasons: firstly and hopefully most importantly; our outstanding programme. Secondly, Vienna’s ease accessibility and last but not least; our extensive marketing campaign which promoted not just these, but many other qualities. The Programme
Under the Patronage of Prof. Paul Oberhammer, a leading expert in the field of litigation and arbitration, and
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Hate Speech
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Inspired by the 7th ELSA Istanbul Summer Law School on M&A, I decided to organize an international Summer Law School. My goal was to establish the first annual international event in cooperation with the University of Vienna, the Vienna International Arbitration Centre (VIAC) and renowned law firms as Wolf Theiss, Graf & Pitkowitz, Willheim Müller, Baker & McKenzie and Schönherr, the ELSA Vienna Law School Team is determined to offer the participants an insight into the world of dispute resolution. We exceeded the specifications of ELSA International and presented a 25 hour academic program as opposed
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Think Global, Act Local - The ELSA Network to the minimum 20, which starts with an introductory day through which the participants got an overview of the different dispute resolution mechanisms. This is followed by specific day-long lectures and workshops on litigation, arbitration, mediation and negotiation. This approach allowed the participants to start the week with the basics and build up to more advanced and profound issues during every single day of the event. Although the outstanding academic program was the most prestigious part, we did not neglect to provide a corresponding social program, through which the participants got to know the city and each other. By visiting the Viennese world famous landmarks and enjoying the vibrant nightlife of the Austrian capital, the participants got to know both Vienna’s grand past and its dynamic present. Subsequently, the ELSA Law School on Dispute Resolution ended with the legendary Graduation Ceremony Cocktail at the law office of Willheim Mßller, one of our earliest supporters. Summary
We have established an annual event where students and young lawyers from all over Europe and (even) beyond are able to get an insight into the magnificent world of different dispute resolution mechanisms. In a nutshell, the participants start the day with lectures and workshops held by leading experts and spend the rest of the day visiting worldfamous Viennese attractions and enjoying the great nightlife of Vienna.
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By visiting the Viennese world famous landmarks and enjoying the vibrant nightlife of the Austrian capital, the participants got to know both Vienna's grand past and its dynamic present. But, just as you cannot play a symphony alone, such an event cannot be organized alone. It takes an extraordinary team to organize it. Besides our legal partners, who generously supported the event both financially and by sending their top lawyers, the biggest thanks goes to the tremendously hard working members of the Organising Committee: Tobias Birsak and Clemens Hartig, who both co-organized all three editions, as well as Erik Muckenschnabel, Ivan Prandzhev and Martin Vogel. 44
Look ahead
As mentioned, it was always my goal to establish an annual international event in Vienna, the birthplace of ELSA. It was a pleasure to work with and for so many ELSA members who taught me much more than I have been able to teach them. After organizing the first, second and third edition, my "little baby" is now three years old and the time has come to see whether it can walk on its own. Thus, for me it is only one thing left to say: one, two, three, go!
Think Global, Act Local - The ELSA Network
ELSA Delegation: WIPO
The experience of a lifetime
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was pleased to be chosen to represent ELSA at the World InStephen Mitchell tellectual Property OrganisatiTreasurer on, in order to observe the 7th Session ELSA UK 14/15 of the Working Group on the Patent Cooperation Treaty (PCT) in Geneva, Switzerland. With me were Cecilia of ELSA Italy, Daniela of ELSA Portugal, Karolina of ELSA Poland and Tadijana of ELSA Croatia. WIPO’s motto: “To encourage creative activity and to promote the protection of intellectual property throughout the world.” The PCT itself aims to standardise national systems that regulate patent applications, in order to bring about a coherent international regime which inspires confidence and minimises costs for applicants.
Intellectual Property Law. From a personal perspective, it was beneficial to be immersed in a different culture and language, and meeting others from across the network at a time when I am seeking to become more involved with ELSA’s activities. Every member of ELSA can apply to represent the Association at a conference, and I would recommend that they do so. I would like to thank ELSA International for this opportunity, and in particular the Delegations Team for their help and support.
From an outsider, the negotiations may seem rather abstract. But over time one gains an appreciation for the context surrounding them, in an area of law which often struggles to keep pace with rapid technological advances. One area of contention was the proposal to reduce fees for PCT applicants from developing countries, which had been stuck in deadlock for over five years. At this Session, important concessions were made in order to make a resolution possible, and I felt proud to be a part of such a moment. However, much work remains to be done. The Working Group was unable to reach a consensus on areas such as the use of force majeure provisions, and the integration of a special fast-track system for certain applications. Progress can be slow, but it remains necessary for the concerns of all delegation to be addressed before change comes about. Having taken part in this delegation, I feel that I now possess a deeper understanding of how international agreements develop, which can be linked to my own studies in SYNERGY magazine
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Think Global, Act Local - The ELSA Network
ELSA Romania
A new start for volunteering in Romania?
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Following several years of intense consultations, adLaurentiu Gherase vocacy and lobbying, Law Treasurer No. 78/2014 has just recently enELSA Romania 13/14 tered into force in Romania, bringing in a new legal basis with a wide range of rights and obligations for all those involved in volunteering activities, from NGO’s to public authorities and even to the volunteers themselves. Being one of the most important volunteering associations in the country, ELSA Romania through its twelve Local Groups, will most surely be of a great help in implementing the new law and collaborating with other youth NGO’s in adapting their legal status to the new changes. It comes at the right moment in the youth landscape, which is in need of a new legal instrument to boost the low volunteering participation rates, which place Romania at the bottom end of the European Union official rankings. The history and contextual background of volunteering in Europe varies greatly between European countries. Whilst certain EU Member States have longstanding traditions in volunteering and well developed voluntary sectors (such as Ireland, the Netherlands, and the UK), in other countries the voluntary sector is still emerging or poorly developed (for instance in Bulgaria, Greece, Latvia, Lithuania, and Romania). Volunteering is strongly influenced by the history, politics and culture of a community and a country.1 1
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http://ec.europa.eu/citizenship/pdf/doc1018_en.pdf
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A most interesting - to say the least - aspect introduced by this new law would be the obligation imposed on the host-organization to support the food, accomodation and transport costs for every volunteer when taking part in volunnteering activities.
Ab initio, right from the first article the law officially recognizes the importance of volunteering for society, and in creating of a European competitive workforce market, while at the same time developing education and increasing social solidarity. It goes on in defining several related terms like volunteering, public interest activities, host organization, volunteering contract, the volunteering coordinator and the volunteer himself. Article 4 of Law no. 78/2014 extends the list of principles on which the new law is based on, keeping all the former principles existent from the past law, whilst adding an extremely important one at letter f) the public interest character of volunteering activities. This principle may become relevant in analyzing and clarifying the status of some volunteering activities, whose actions are hard, if not extremely hard to identify
Think Global, Act Local - The ELSA Network the meaning of it being to shed light on what is and what is not volunteering in itself. Regarding public institutions and authorities and their responsibility towards volunteering activities, article 6 and 7 points out the fact that in supporting volunteering, local public authorities should not take benefit from these actions as a means to reduce expenses. Also it mentions the annual public meetings which must take place between them and the representatives of host organizations, in the scope of creating an efficient cooperation between all the parties involved. By far the most relevant aspect introduced by this new law, would have to be the long-awaited acknowledgement of the professional experience acquired during the volunteering activities, although it still requires lots of work and clarifications to become ready to use. Thus article 10 mentions the fact that volunteering may be considered as “professional experience and/or in specialty if it is attained in the domain of one’s graduated studies”. This legal provision gives significance to the volunteering certificate mentioned at the same article, which imposes a more detailed content regarding the unique identification elements of every volunteering contract, transforming this certificate into an essential instrument for recognizing volunteering activities as professional experience, making its distribution procedure more important in this context. At the same time, the content of the volunteering contract is much more comprehensive in the light on Law no. 78/2014. Not taking into consideration the already clear aspect of its mandatory signing, it is required that two new legal instruments make up it its content, namely volunteering activities annex and volunteer’s protection annex. While the former is a document which lays out the volunteer’s duties and responsibilities, the latter is an instrument which indicates aspects regarding health and security at the workplace. As a consequence of the volunteering contracts’ binding agreement, the issue of authorizing all organizations that will sign contracts with volunteers to become registered personal data operators, due to the fact that the volunteering contract and its subsequent volunteering certificate shall contain, as in accordance with the law, personal identification data belonging to the volunteer.
ning an insurance contract against work risks, depending on the nature and complexity of the activities done by the volunteer. Were these aspects to be introduced by host organizations, it will most probably lead to an increase in the cost of membership fees for those NGO’s which receive such sources of income to support their activity, such as ELSA Romania does. Only time will tell what the impact of this new law will have on volunteering activities in Romania. Until then, as Immanuel Kant well said, we should all live our lives as though our every act were to become a universal law. A universal law which governs a just world in which there is respect for human dignity and cultural diversity.
A most interesting – to say the least – aspect introduced by this new law would be the obligation imposed on the host-organization to support the food, accommodation and transport costs for every volunteer when taking part in volunteering activities. It also has the option of sig-
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Think Global, Act Local - The ELSA Network
Setting up a National Project from Scratch
ELSA Seal the Deal: M&A Contract Competition in Austria
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How can we make our Alexandra Avram ELSA year a success? How Vice President for can we contribute to the Academic Activities aim of our association? Where ELSA Austria 13/14 should we start? When beginning your year in the national board of an ELSA group these are probably the first and most important questions you have to ask yourself. One of the aims of the national board of ELSA Austria 2013/2014 was the revival of the Academic Activities on a national level, which meant that one of our goals was quickly set on the organization of national events across all law faculties. And as you all know, these events require a lot of planning, time and motivation – well, we had only a few months, but the outcome was 26 participating law firms, 68 students, 9 professors and 5 participating law universities. How did we beat the odds? As an association that devotes itself to the legal education, we have to keep in mind several factors when organizing academic events which are meant to fulfill our goals: What do students need? What is feasible and profitable? What can the network manage? As far as the first point is concerned ELSA Seal the Deal lends itself perfectly as an event which does not only provide the possibility to implement acquired knowledge into the practice, but also enables the participants to acquire relevant soft skills for their future careers. The participants have within one semester to “seal a deal” by passing through all stages of an M&A transaction: after drafting the contracts, the teams negotiate the case in front of a selected jury and 48
strive to reach a settlement. Throughout the semester the participants are President ELSA Austria 13/14 coached by local law firms. All in all, there is hardly a better way to gain an insight into the work of a law firm and learn about the specificities of M&A transactions. Rainhard Fuchs
What is practical and feasible? The next point is one that is often forgotten within ELSA: the feasibility and practicability of our events! The topic has to be mutually attractive to both, students and partners. Regardless of the economic crisis, M&A remained a very attractive field of law and law firms continuously look for motivated graduates to join their teams. After the success of the pilot M&A Contract Competition organized by ELSA Vienna in cooperation with the Institute for Commercial and Business Law of the University of Vienna in 2012/13, we decided to tap into this topic further and offer to one of the participating law firms the patronage for the national implementation of the event. Schönherr Attorneys at Law did not only accept our offer, they were also a great support in the drafting of the academic concept and provided the case. From then on it was our job to prove that we could fulfill our promises: with 5 Local Rounds and one Final Reception for all winning teams at the Viennese office of Schönherr on the 18th of July we managed this as well! How to bring it to the local event? Having gained one national law firm as a patron, we de-
Think Global, Act Local - The ELSA Network
cided to acquire two further exclusive sponsors. With EY and MANZ (a renowned Austrian publisher of law books) we rounded up the budget and provided the local groups with the needed financial and material help. However, the deal is not closed if you stop at this point. Although with three national partners, the acquisition of local law firms as coaches is a bit more probable, there are further steps needed to make a national event succeed: the local partners as well as the professors will only support the event if they are fully convinced of its practicability and the profitability of their involvement; presenting the concept clearly and in accurate detail and a convincing marketing strategy are the key to success. And then there are these other tasks one needs to assume when coordinating a national academic competition: the preparation of sponsorship materials, cover letters, coordinated marketing concepts, documents for the jury, timelines etc. and not to forget hours of Skype meetings and briefings with organizing local teams. Organizing a national academic competition can be a challenging but always rewarding experience. As a coordinating head of the competition you have to maintain an overview and control over the whole organizational process, but what needs even more attention is your continuous (moral and actual) support for your local officers. Only if you act out
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of a strong belief and motivation, you will be able to motivate in return, calm and cheer up your team when needed – and our belief in ELSA always showed us that as a strong team we are able to achieve greatness. After the success of this year the next board of ELSA Austria plans now to bring the M&A Contract Competition to a next level and organize a national final round for all winning teams. We are very lucky to have been part of this story of success and looking forward to the next year’s Big Deal!
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ELSA Seal the Deal lends itself perfectly as an event which does not only provide the possibility to implement acquired knowledge into practice, but also enables the participants to acquire relevant soft skills for their future careers. 49
Think Global, Act Local - The ELSA Network
ELSA Moldova
Inspire others to inspire themselves!
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A new ELSA National Group was recently foun- Gabriel Diaciuc ded in Eastern Europe. President ELSA Moldova 14/15 The ELSA spirit has gained new dimensions and new followers in the Republic of Moldova! This initiative could not be realized without the help of friends from ELSA Iasi, especially the former president Luca Ciubotaru contributed the most to the creation of the current initiative group – he inspired me to develop this organization and now I am inspiring young law students from Moldova to get involved in extracurricular activities organized by ELSA. What is unique about ELSA Moldova is the fact that this National Group consists of 3 local groups – ELSA Chisinau, ELSA Balti and ELSA Cahul. Moreover, in their humble 2 month history, every local group has succeeded in organizing at least one event. It is worth mentioning the friendly atmosphere that prevails in our group and that we work together for the benefit of other students. The help we get from our Romanian friends and from the International Board makes us really proud and grateful! Students who are motivated to be active outside the classroom are already interested in joining the next recruitment period and are actively asking how they can be involved in ELSA activities. We think that for a new organization, we are already successful and popular among law students in Moldova. The process of creating the initiative groups in Balti and Cahul took place during three days, between 4th and 6th of June
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2014. On 4th of June the first ELSA presentation took place at the UniverPresident sity “Alecu Russo” in Balti. Along with ELSA Iasi 12/13 students and representatives of the Faculty of Law of the University the event was attended by the Dean of the Faculty of Law and the Consul General of Romania in Balti. Luca Ciubotaru
In the afternoon of the same day a presentation of ELSA took place in the capital city Chisinău where the ELSA national group was founded a month before, on 5th of May. Lastly, the third initiative group of ELSA Republic of Moldova was founded: ELSA Cahul at the Faculty of Law of the University "Hasdeu" in Cahul. Supporting the establishment of these groups was a delegation from the Faculty of Law of the University "Alexandru Ioan Cuza" in Iasi, Romania. The delegation was formed by prof. Dr. Tudorel Toader, Dean of the Faculty of Law and Judge of the Constitutional Court of Romania, Luca Ciubotaru representative of undergraduate students and former President of ELSA Iasi (2012/2013), Valentina Crivat ELSA Alumni member and Madalina Juncu, President of ELSA Iasi. It was a dream come true. Although the links between the Moldova and Romania are deeply rooted in history, there was almost no connection at all between the law student communities. We strongly believe that this new initiative will develop both communities and at the same time enlarge the network with people that believe in the same principles of human dignity and cultural diversity. Further, ELSA Moldova concentrates its attention toward ob-
Think Global, Act Local - The ELSA Network
taining the observership status. After successfully completing and performing all the necessary tasks, the so wanted and the long-awaited membership, will be awarded at the International Council Meeting in the spring of 2015.
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...the National Board of ELSA Moldova is looking forward to foster the co-operation on the national level between all the local groups and to create as many long-standing partnerships and friendly relations with other ELSA National Groups as possible.
ELSA National Groups as possible. It is vital and important to receive the needed support from those who already did their best and for whom ELSA is already a way of life. As we are focused in developing our three Local Groups, we have a great opportunity to put our minds together and come up with many new methods of making law students’ life more diversified and to create an environment where they can increase their knowledge access more opportunities in Europe. The founding of a law student’s association with an international dimension means a lot for law students in Moldova. Being the first president of ELSA Moldova my goal is to build a brighter future for the new generations of law students and for the country itself. The establishment of the European Law Students’ Association in Moldova will undoubtedly improve the quality of education at the Faculties of Law in our country!
Until that glorious moment, the National Board of ELSA Moldova is looking forward to foster the cooperation on the national level between all the local groups and to create as many long-standing partnerships and friendly relations with other
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