Judicial Corruption: Problem on Every Continent

Founded in 1947, the International Bar Association (IBA) now has membership in excess of 80,000 individual lawyers and over 190 bar associations and law societies spanning over 160 countries. The body has continued to justify its role as the Global Voice of the Legal Profession. Mr. David W. Rivkin, President of the IBA and a Partner at International Law Firm, Debevoise Plimpton, spoke to Onikepo Braithwaite, Jude Igbanoi and Tobi Soniyi on a wide range of issues including his views on the global economic downturn, human rights, arbitration and the economic welfare of lawyers

Recently, the Chartered Institute of Arbitrators UK (NigeriaBranch) held their annual conference in Port Harcourt, Nigeria. One of the goals of the Institute is to establish Nigeria as an arbitration hub in Africa, and subsequently, the world, like London and Singapore. What advice can you give to assist the Institute to achieve its goals? What obvious lapses do you see in the Nigerian Arbitration System that may need to be corrected to achieve these goals?

A substantial number of arbitration cases derive from Nigeria, so there would be an advantage to having a strong arbitration centre there. The most important factor would be having a judiciary that strongly supports arbitration by enforcing arbitration agreements and awards, does not interfere in the arbitration process by issuing injunctions or otherwise, and does not show favouritism towards Nigerian parties. Foreign parties must also have confidence that the judiciary and the arbitration system are free of corruption and that their cases will be handled fairly and impartially. It would also be helpful to have an arbitration institute that has good rules, based on the best and most efficient practices of global institutions, and that has a truly international Board that selects arbitrators from a list of internally respected Nigerian and foreign arbitrators.

Mr. Rivkin,as a world renowned Arbitrator,you obviously have a great deal of experience in the field, conducting arbitrations under common law, civil law and Islamic law systems. How did you come about being an expert in the Islamic Law System, seeing as it is not part of the American Legal System? Could you tell us about some of the type of issues that arise in some of the arbitrations that you have handled in the Islamic Law Systems?

 
Many of the cases in which I have represented clients in international arbitrations have involved energy disputes arising from the Middle East, in which the governing law was from one of those countries. Many of their civil codes directly or indirectly incorporate Islamic law, so I have had to learn many aspects of it in order to advocate those cases on behalf of my clients. In one case in the 1980s, we had many experts on Islamic law, including an Iranian Ayatollah who was assisted in researching 14th century Islamic texts by his students in Qum.

NigeriancontingentsusuallyattendtheIBAAnnualConferencesheldin different parts of the world. What benefits do you think can be derived from attending? One of your goals as President of the IBA, is to ‘conduct an extensive and focused membership campaign’. What really, if any, are the advantages attached to being a member of the IBA?
For Nigerian delegates, and similarly those from other countries, the benefits of attending an IBA Annual Conference are many. Chiefly, attendance places delegates at the heart of the global legal community. Wherever the event is held it always attracts the leading international business lawyers. Through networking, new connections are made, ideas and experiences are shared, relationships and trust are built, referrals are made, and business deals are sealed. We hear time and again, the importance of attending the IBA annual conference to develop these relationships and build international business contacts. During the week-long event, there are more than 200 working sessions containing cutting edge content from some of the best legal brains; they educate on the real life application of international law and expand a lawyer’s approach to problems. In addition, prominent politicians, regulators and economists address delegates on current global issues. I have been attending IBA Annual Conferences since 1991. I meet old friends and develop new contacts. I believe that the same fiscal, educational and social benefits are available to all, and as with most things in life, the benefits derived are usually commensurate to one’s contribution.

As you would expect, I am biased in my opinion of the benefits of IBA membership. So, I would recommend listening to IBA members themselves, extolling the virtues of IBA membership in their own words in a short film on the IBA website at this link http://www.ibanet.org/IBA-membership-film.aspx

The Annual General Conference of the IBA in Washington this year seemed to witness a slight drop in attendance. What, in your view, could be responsible for this and how does IBA intend to address that challenge in future conferences?
Wonderfully, there were 6,650 delegates from 140 jurisdictions in attendance at the 2016 IBA Annual Conference in Washington DC. Both figures are higher than that of the previous year, demonstrating that the international appeal of the IBA continues to grow.

Recently, Nigeria’s legal profession, mostespecially the Judiciary, wentthrough a serious shakeup. Judges, including two Supreme Court Justices, and a few senior lawyers are facing corruption charges. Does this kind of occurrence obtain in USA? Being a seasoned lawyer and arbitrator with international experience, and also being a non-Nigerian with an objective point of view, what steps do you think Nigeria should take to ensure that corruption within the Judiciary and the Legal Profession as a whole is curbed?
Corruption in judiciaries is a problem on every continent. Where it occurs, it undermines the rule of law and civil society, because it causes citizens to lose faith in the ability of government to assist them. For these reasons, last year, I launched the Judicial Integrity Initiative (JII). The JII is an extension of the anti-corruption work the IBA has been doing around the world, such as training lawyers to identify corruption, and not to participate in it unwittingly. Since the launch I have visited a number of countries including Singapore, Mexico and The Philippines to conduct in- country consultations. We published a survey on the nature of judicial corruption in May 2016: http://www.ibanet.org/Article/NewDetail.aspx?ArticleUid=34EC225A- EE67-4D6A-A2E8-B3718C12D347. We are now undertaking five separate projects designed to combat judicial corruption. These include drafting the IBA Judicial Anticorruption Compact – an individual commitment by judges, lawyers, prosecutors and court administrators to zero tolerance of corruption in the legal profession. The Compact has been adopted in Mexico and this week the Chief Justice of Ghana and leaders of the bar there will sign it.

To combat corruption within the judiciary requires the attention and resolve of the legal profession as a whole. Nigeria is not an exception in this respect, and must seek to combat it through promoting the highest standards of integrity among judges, prosecutors, court personnel and lawyers.

After 69 years of its existence, would you say with certainty that IBA has continued to faithfully live up to its mandate as the global voice of the legal profession?
Absolutely, yes! In a world that has changed enormously since the establishment of the IBA in 1947, I believe that the Association has evolved to remain relevant and current. Presently IBA membership comprises more than 80,000 individual lawyers, 190 bar associations and law societies, 189 group member firms – where every single lawyer in the firm is a member – and 23 corporate group members. Almost every country in the world is represented at the IBA in some form or other. The legal expertise among the various components constituting the IBA is considerable.

The number of IBA committees, aligned to practice areas, has grown to reflect the development of new areas of law; task forces have been established to address specific issues such as climate change justice, human trafficking and the independence of the legal profession; the number of specialist conferences held around the world has grown to more than 50 each year; training programmes are conducted for lawyers and judges; and major initiatives have been launched including the eyeWitness to Atrocities app, which allows photos or video footage to be stored in a virtual evidence locker for use in trials and investigations. Further, the IBA has adopted the Practical Guide for Business Lawyers on Business and Human Rights. It is critical that lawyers better understand how to advise clients to avoid human rights impacts and to comply with the UN Guiding Principles on Business and Human Rights. The IBA’s Practical Guide will be a great resource for lawyers and bar associations in understanding these issues, which are part of an important new field for law firms.

Lawyers from different jurisdictions maintain active membership in the IBA. There are members from Common Law jurisdictions and from Civil Law jurisdictions, how does the Association cater for the varying interests of these lawyers from diverse backgrounds?
Diversity is one of the main characteristics of the IBA, including the expertise of practitioners from common and civil law jurisdictions. At any given time on any given topic there is a wide range of views and experience amongst the membership. The Association provides an arena where different traditions can be debated, explored and understood and where best practices from multiple jurisdictions can be shared. The IBA also has many members from Islamic law jurisdictions and from jurisdictions where the law is a hybrid of these approaches.

Security appears to be an emerging globalchallenge. Does the IBA have any mechanism to prepare lawyers to face those challenges in their various countries?
Greater connectivity, the advent of the internet, political upheaval and entrenched ideology are all factors contributing to a security-challenged world where cybersecurity in particular has become one of the biggest threats. Nations are grappling with building frameworks around international law and domestic law, and companies of all descriptions, including law firms, are turning their attention to preventing data breaches. At a number of IBA events we have had cybersecurity experts address delegates about the significant dangers posed by hackers. As a result of this wake-up call, many law firms have moved the issue of cybersecurity to the top of their agendas. All companies should seek professional advice on how to make their systems as robust as possible.

The worrisome trend of violations of human rights ofl awyers and the rule of law is now a very present threat in many countries in the former Eastern Bloc, Africa and Arab countries. What is the Association doing about this?
Personal attacks on lawyers are indeed a very worrying trend, and the IBA and I as IBA President have spoken out publicly on a number of occasions. We will continue to encourage adherence to the norms of international law and conventions, including the Basic Principles on the Role of Lawyers, which states ‘Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognised professional duties, standards and ethics.’ In addition, bar associations, law societies and individual lawyers must speak out and educate the public on the importance of the independence of lawyers in protecting the rights of all citizens. That is one reason why I created the Presidential Task Force on the Independence of the Profession.

At the 2016 conference, you alluded to the fact that the IBA will explore the proper ethical rules for lawyers in light of the disclosures of the Panama Papers, and also how government should properly fight corruption without infringing on the attorney-client privilege and professional secrecy that are vital to serving our clients. What steps has the Association taken in this regard?

 
On 14 December, the IBA and the Organisation for Economic Co-operation and Development (OECD) issued a joint news release announcing their collaboration. In part it read: “Following on from the London Anti-Corruption Summit which took place in May 2016, the IBA and the OECD have agreed to form a task force to develop professional conduct standards and practice guidance for lawyers involved in establishing and advising on international commercial structures and recommended actions for governments. The principle motivation for forming the OECD-IBA Task Force on The Role of Lawyers and International Commercial Structures is to create a key component in the global fight against corruption. The release earlier this year of the so-called Panama Papers highlighted that, in completing legal transactions for their clients, lawyers may knowingly or unwittingly assist clients in assets concealment or money laundering. Since the scandal, many governments have called for greater transparency of such transactions, sometimes requiring reporting by lawyers. The Task Force will work to develop appropriate guidance with respect to forming international commercial structures, while ensuring that public confidence in the lawyers’ role and the core principles of the legal profession – including attorney-client privilege and professional secrecy – are preserved.”

With the present global economic meltdown, do you have any advice to give to lawyers in developing countries on how to survive professionally?

 
Develop strong ties with international peers and keep open the lines of communication so that one is aware of what is happening outside of one’s own jurisdiction. Also keep-up-to-date with developments in the law and strive for excellence at all times.

You have the privilege of being the first lawyer from the United States of America to be IBA president in over 25 years. How would you like your tenure to be remembered?
It has indeed been a privilege. I am proud of the work done by my Presidential Task Forces on judicial integrity, human trafficking, climate change justice, business and human rights and independence of the profession. I am pleased that the IBA has been the voice of the legal profession at multilateral meetings on these issues involving high government officials hosted by, among others, Prime Minister Cameron, the Pope, the World Bank, UN and OECD. I have had the privilege to open important capacity building projects in Myanmar and Cuba, and to meet with more than 20 Ministers of Justice and in more than 20 countries with their Chief Justices or other justices of their highest courts. I am pleased that I have been able to visit Africa on 6 separate occasions, more than any past IBA President, though unfortunately I never made it to Nigeria. Most of all, I hope that my tenure will be remembered as a time when the IBA worked diligently and successfully to advance the rule of law and human rights and to provide great benefits for our members.

How was the attendance at the Annual General Conference of the IBA in Washington this year? Was there a lull in the attendance? The Nigerian contingent seemed a bit smaller this year.
I strongly disagree with the premise of the question. The IBA regularly speaks out against human rights violations. I have personally sent letters to and met with leaders in China, Turkey, Malaysia and other countries where human rights have been threatened. The IBA’s Human Rights Institute also often makes public statements or sends private letters to leaders when violations occur. The IBAHRI and I both spoke out earlier this year when in Pakistan many lawyers had gathered in a hospital to mourn a slain colleague, Bilal Anwar Kasi, President of the Balochistan Bar Association, and they themselves became victims of targeted mass murder. On 10 December, Human Rights Day, the IBAHRI called on President-Elect Trump in an open letter to address declining human rights in the United States.

Moreover, the IBAHRI engages in substantial training of judges and others on human rights and rule of law issues, and engages in other capacity building designed to prevent human rights violations. I know of no other legal organisation that focuses as frequently and effectively on human rights.

As another example, we have focused on the issue of climate change and how it is affecting those in the most vulnerable societies who have contributed least to it and lack the resources to respond. Not only has the IBA been vociferous in its criticism of the situation, but we created a Presidential Task Force that in2014 issued a report – Achieving Justice and Human Rights in an Era of Climate Disruption – which detailed the legal frameworks required to protect human rights concerns arising from climate change. Mary Robinson has called it the “flagship report” in the field, and we know that UN and government negotiators have been relying on it. Since the publication of the report, many IBA committees have worked towards implementing the report’s recommendations.