Category Archives: Reuben Guttman Articles

A wide range of speakers with a wide range of views characterises the IBA. Reuben Guttman of Guttman, Buschner & Brooks PLLC reflects on the week that was.

BOSTON, MASS – From Associate Justice of the United States Supreme Court Stephen G. Breyer to Lord Phillips of Worth Matravers, there was no shortage of legal stars at last week’s 2013 International Bar Association convention. Panelists included Zachery Douglas of Oxford and George Berman of Columbia University, both world leaders in the field of international investment arbitration, and Harvard professor and former UN Secretary-General’s Special Representative on business and human rights, John Ruggie.

Ruggie made the point that with panels ranging from anti-corruption measures to corporate social responsibility and human trafficking, much of the 2013 International Bar Association convention is about what he calls “the externalities of globalization.” At a plenary question and answer session with questions posed by Chris Jochnick of Oxfam America in Washington, DC, Ruggie stressed the complexity of the problem, noting that “it is easier to produce theoretical solutions that impress yourself as opposed to practical solutions.”

Touching on the impact of multi-national corporations that manufacture through supply chains, Ruggie addressed the question of whether a global corporation can legitimately disclaim responsibility for human rights abuses at the lowest levels of the supply chain. “It does not make a difference how many layers you have,” said Ruggie, “if you caused the problem, you are responsible for it.” Ruggie added that “the idea that you have no responsibility for what goes on at the bottom [of the supply chain] is no longer acceptable.”

While educational opportunities, such as Ruggie’s discussion in the plenary session, are prevalent at the IBA 2013 convention, there is the potential to be subject to what Americans call an infomercial. For example, at a session on corporate social responsibility, an attorney for a large oil company, which has been the subject of both criminal and civil prosecution, read from a text extolling the social responsibility of his employer. While one panelist indicated that some corporations make a “liability calculus” in determining the risks posed by non-legal compliance, this oil industry representative denied such calculus is ever made.

Panelists and IBA members, of course, represent different nations, cultures, and economic constituencies. Opportunities to learn are ample but part of the learning is understanding that panelists and members arrive with their own agendas.

In 2014, the IBA Convention will be held in Tokyo, Japan.

In addition to his work with the UN, Ruggie recently published Just Business: Multinational Corporations and Human Rights (Norton 2013).

Lawyers need to be very careful they don’t become embroiled in money laundering, says Reuben Guttman of Guttman, Buschner & Brooks PLLC.

BOSTON, MASS — At the melting pot of nation and culture that is the 2013 International Bar Association Convention, participants at a panel on money laundering debated the obligation of lawyers to make reports of illegal conduct to regulators.

Stephen Revell of Freshfields in Singapore noted that the question of a lawyer’s obligation to disclose suspicious activity that could involve money laundering is a question for transactional lawyers and not criminal defense lawyers who are defending those accused of money laundering.

For the transactional lawyer, said Enide Perez, a Professor of Law at The Hague, there is a “risk of the lawyer becoming involved in the laundering.”

Under ethics rules covering most US jurisdictions, a lawyer is permitted to disclose the potential for unlawful conduct to regulators only after an effort has been made to address the problem internally within the organization. The policy behind the rule is to allow, in certain circumstances, disclosures necessary to prevent substantial injury to an organization. If, however, the lawyer’s services are being used in furtherance of the violation, the lawyer is allowed to disclose confidential information and may be required to withdraw from representing the organization.

Mauro Wolfe of U.S.-based Duane Morris agreed that as an international norm, lawyers should give their clients an opportunity to “purge corruption out of the transaction.” And Wolfe suggested that attorneys “should have a discussion with the client” to determine whether the suspicion is well founded.

While money laundering has varying definitions, its purpose is to hide the proceeds of crime. Panelists described how cross-border money laundering schemes involve the conversion of cash into big tickets assets – including jets and yachts – which can be sold and converted back to cash. “Once crooked money becomes an asset it gets lost” to investigators, noted Revell.

Thirty-four countries, including the United States and the United Kingdom, have been working together to create standards to promote effectively effective implementation of legal, regulatory, and operational measures to combat money laundering, terrorist financing, and other related threats to the international financial system through the Financial Action Task Force (FATF) for the past three decades. The standards created by this inter-governmental agency are used by more than 180 governments to combat money laundering and other financial crimes and were most recently updated in February 2012.

In addition to participating in the formulation of international standards for legal protections against money laundering though the FATF, Mouro noted that that US Department of Justice (DOJ) has treaties with foreign nations for the cooperation in investigating matters of money laundering. If the wrongful conduct touches the US, Mauro opined that “at least 20 US Attorney offices would be interested” in investigation.

And does a lawyer walk away from a client whose conduct may involve suspicious activity? “Sacking the client may only pass the problem to another lawyer,” opined Revell.

The IBA is all about the interface of legal systems, says our man at the 2013 extravaganza, Reuben Guttman of Guttman, Buschner & Brooks PLLC.

BOSTON, MASS — It is day three of the International Bar Association’s 2013 Convention and the halls of the Hynes Convention Center here are graced with lawyers from across the globe.

With the growth of a global economy, the common question among all attendees is how to interface the laws of different nations particularly where culture and language may not be susceptible to simple translation?

At a panel entitled “Enforcement by Regulators,” Richard Walker, counsel for Deutsche Bank, noted the rise in cooperation among foreign regulators. “Multi-jurisdictional investigations have a new meaning with Libor,” noted Walker, who explained that the US prosecution of Seimans for violations of the Foreign Corrupt Practices Act “was the beginning with local German prosecutors cooperating with US prosecutors.”

Panelists noted that attorney client privileges may vary from jurisdiction to jurisdiction presenting challenges to legal counsel involved in cross boarder investigations. Yet attorney client privileges are just the tip of the iceberg with language and cultural barriers presenting a thick layer of challenge for prosecutors involved in cross-border cooperation.

Others sessions on international investment arbitration shared the same common theme of the interface of law, culture and language. Creating fluid movement between legal systems is the challenge faced by IBA members.

But the IBA is not just about the procedural side of law. Questions about human trafficking, pollution and employment standards are topics of discourse here. While the subtle theme is promotion of human rights the driver is economics. Reliable legal systems that allow for enforce of rights provide confidence for investors.

Our man at the IBA, Reuben Guttman, is most impressed by a law professor from Washington University who is teaching the world from a booth in the convention centre.

BOSTON, MASS — It is day two of the International Bar Association’s Convention here and Washington University Law Professor Michael Koby is sitting in a chair at Washington University’s booth in a cavernous convention hall.

A Global Epicentre

In front of Koby is his notebook computer and above him — for all to see — is a large flat screen television with Koby’s face and the faces of his students from across the globe. Amidst Convention chaos, Koby is teaching a civil procedure class to students in Brazil, China, Japan, Mexico and other countries across the globe. Koby proudly points out that one of his students is a member of the Parliament in India.

50 students from 21 countries.

Washington University is a prime sponsor of this 2013 IBA Convention and it came here to promote its online LLM Program in the US and comparative law for students who reside outside of the US. The program is less than one year old but it already has 50 students from 21 countries. And with a commitment as a prime sponsor for the 2013 IBA Convention, officials at Washington University must see a bright future for their LLM program.

Top shelf program

In the United States, Washington University Law School, located in St. Louis, is one of the nation’s top ranked law schools according to rankings by US News and World Report. Koby says that the school did not want to risk its reputation on anything other than a “top shelf program.” Small class size and the participation of the law school’s full time faculty is a hallmark of the Washington University offering. And rather than recruit students just out of law school, Washington University is looking for individuals who have a solid legal practice but absent Skype technology would not have the opportunity to study at a US law school.

The Skype technology brings students to St. Louis – or Boston – without boarding an airplane.

Students must be proficient in English and they must also undergo a Skype interview says Koby. Where US law schools’ overseas endeavors can be high cost and risky, the Washington University strategy is premised on the Skype technology which brings students to St. Louis – or Boston – without boarding an airplane. Whether other law schools will follow the Washington University lead remains a question. But here in Boston where Harvard has reigned as king of legal training, Washington University is leaving its mark.

The US may be closed for business but the IBA is well and truly open. Reuben Guttman reports from the 2013 IBA Convention in Boston.

The International Bar Association is open for business

BOSTON, MASS — The United States government is shut down, but the International Bar Association is open for business here with its 2013 Annual Convention. With a few exceptions, the shutdown has had no impact on the convention. The dinner meeting of the IBA Arbitration Committee – originally scheduled for the John F Kennedy Library and Museum — had to be rescheduled. The faculty is run by the federal government. Other events scheduled for state, city and private venues remained unaffected.

Pharma giants are under the watchfully eye of investigators in China.

At the meeting of the anti-corruption committee, China’s bribery investigation of the pharmaceutical giant, GlaxoSmithKline took center stage. Wenjie Qian of Chance Bridge Partners in Beijing said that the GSK investigation is just the beginning of China’s efforts at taking a lead in battling corruption. She indicated that pharma giants, Roche, Novartis and Merck are under the watchfully eye of investigators in China. And she said that others industries including auto, telecommunications and hi-tech will soon be under the scrutiny of the State Administration for Industry and Commerce (SAIC). Ms Qian also said that whistleblowers are playing a critical role in compliance enforcement in China.

Whether investigations in China will lead to prosecutions elsewhere – particularly under the US Foreign Corrupt Practices Act – remains an open question.