Harvard Law School

April 21, 2014

Rethinking Kiobel: Is there room for human rights in anticorruption enforcement?

April 21, 2014 – Maryum Jordan

This post was originally published in the Global Anticorruption Blog, an exciting new initiative by Harvard Law School professor, and LIDS mentor, Matthew Stephenson. Six current and former LIDS members–Rajarshi Banerjee, Daniel Holman, Maryum Jordan, Meng Lu, Philip Underwood, and Colette van der Ven–are contributors to the Blog. LIDS Live will post brief introductions to their posts, and direct you to the Blog to read the rest.

It is the one-year anniversary of the U.S. Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co. In its decision, the Court narrowed the admissibility of Alien Tort Statute (ATS) claims related to extraterritorial human rights abuses, ruling that such claims are not actionable unless the claim has a sufficient nexus to U.S. territory. What kind of nexus is enough for an ATS case arising from exterritorial conduct? For cases involving foreign multinational companies, such as the defendant Royal Dutch Petroleum in Kiobel, a “mere corporate presence” in the U.S. is not enough.

A striking feature of this holding is the clear contrast between how a “mere corporate presence” in the U.S. is not enough for an ATS claim based on extraterritorial conduct, but is sufficient for a Foreign Corrupt Practices Act (FCPA) prosecution. Although Royal Dutch Petroleum’s “mere corporate presence” in the U.S. was not a sufficient basis for an ATS claim, if these human rights abuses were tied to corruption for the retention or solicitation of business in Nigeria (and involved U.S. interstate commerce — a requirement not difficult for the DOJ and SEC to overcome), Royal Dutch Petroleum could be liable for FCPA violations. As a foreign multinational company, Royal Dutch Shell Company lists its shares on the New York Stock Exchange and prepares filings for the SEC. Such activity is sufficient for establishing FCPA jurisdiction.

This suggests a possible strategy for human rights advocates dismayed by the Kiobel decision: Perhaps it might be possible to more aggressively utilize FCPA enforcement for circumstances in which corporate accountability for human rights abuses is tied to bribery. Continue reading →

April 21, 2014April 21, 2014

Harvard Law Students: Apply to the Global Anticorruption Lab seminar next year! (Deadline: April 25)

April 21, 2014 – Matthew Stephenson

Dear LIDS Members:

I’m writing to encourage those of you who are interested in applying to participate in the Global Anticorruption Lab that I will be running this coming academic year. There is a description in the course catalogue, but I wanted to reach out to LIDS because this class might be of particular interest to students with interests in law & development, particularly anticorruption and good governance.

The Lab course is an opportunity to do independent research on a topic or topics of your choice, in a collaborative setting that provides opportunities for feedback not only from me, but from your classmates as well. Through the Lab course, you will contribute to the Global Anticorruption Blog (www.globalanticorruptionblog.com), reaching an audience that includes leading figures at the World Bank, Transparency International, UNDP, and other leading anticorruption organizations.

This year’s Lab had great representation from LIDS members, and I would love to get more LIDS members involved if possible. If you would like to learn more about this year’s Lab please feel free to email current Lab member and outgoing LIDS co-President Raj Banerjee at rxbanerjee@gmail.com. Raj would be delighted to chat about his experience!

Slots are limited, so if you’re interested, please email an application, including a CV and statement of interest (as well as a transcript) to mstephen@law.harvard.edu by Friday, April 25.

Professor Stephenson

April 18, 2014

Working on Human Rights at the Council of Europe

April 18, 2014 – Dean Rosenberg

Last summer, I interned with the Legal Affairs and Human Rights Committee of the Council of Europe, in Strasbourg, France.

The Council of Europe, which is distinct from the European Union, is composed of 47 member states, including the vast majority of European states (UK, France, Germany, Russia, Turkey etc.). The Parliamentary Assembly meets a number of times a year, and is composed of representatives from the national parliaments of each of the member states. The Legal Affairs and Human Rights Committee is a Committee of the Parliament, and it deals with the proposal of resolutions that touch upon legal issues often relating to the administration of the European Court of Human Rights, which is within the organization’s purview. The staff of the committee’s primary role is to assist members with preparing resolutions to be proposed, as well as the accompanying research reports.

The internship was an amazing experience. I worked on three large projects. First, I helped create a report on the issue of the independence of the European Court of Human Rights. This involved researching the procedures for electing judges to the court, hiring and maintaining the court’s registry, and examining the post-retirement careers of the Court’s judges.

Second, I wrote a preliminary draft resolution and an accompanying report dealing with the accountability of international organizations for human rights violations. Currently, many of these organizations, such as the UN or NATO are largely unaccountable for any human rights violations they may commit. For example, the UN has asserted its immunity from suit after UN peacekeepers contributed to a cholera epidemic in Haiti that has killed close to 9,000 Haitians.

Finally, another intern and I created a report focusing on the challenges and opportunities presented by the possible accession of the European Union to the European Convention on Human Rights.

Perhaps the most unique component of my time at the Council was the parliamentary session itself. The building was buzzing with activity, and I, along with the other intern in the committee, had the opportunity to attend committee sessions during which the parliamentarians debated and voted on sending the resolution to the full session. These debates are often controversial and extremely heated, and it is definitely a thrill to be in the room when some of these issues are being discussed. One of the most interesting sessions involved a presentation by Amnesty International of Russia’s lawyers discussing their experiences of the treatment of lawyers and their clients in the Caucasus, delivered in a session attended by many Russian members of parliament from those areas. The session provided me with the chance to get first-hand experience of the political process and debates attached to what can sometimes be relatively abstract legal research. The experience was sometimes heartening, but also disappointing and frustrating when resolutions were rejected for plainly political reasons. Indeed, while it is of course predictable that politics will play a role at any international organization, it was somewhat surprising the extent to which delaying tactics, obstructionist coalitions, and other political maneuvers can dominate the process of preventing any resolution, no matter how inconsequential, from being passed.

Working at the Council of Europe gave me a much better understanding of the way in which large international organizations, which play a crucial role in promoting human rights and development, actually work.

April 18, 2014

LIDS Advisory Board Member to Teach HLS Course on Anti-Corruption

This fall, LIDS Advisory Board Member El Cid Butuyan will be teaching a seminar on “Transnational Corruption” at Harvard Law School. Mr. Butuyan’s work as a Senior Litigator for the Integrity Vice Presidency of the World Bank and background managing high level anti-corruption prosecutions in the Philippines allow him to draw upon a wealth of personal experience in teaching the course. LIDS encourages members with an interest in the topics of anti-corruption regulation, enforcement, and policy issues to consider joining the course! Non-HLS students may be eligible to cross-register according to applicable procedures. The court catalog description follows.

Transnational Corruption – Fall 2014 Seminar

Mr. El Cid Butuyan | Th 3:00pm – 5:00pm | 2 classroom credits

“This course will explore the emergence of the global anti-corruption movement and will provide students with: a brief overview of the trends in the burgeoning field of anti-corruption enforcement including various global norms on the subject; the work of select regulatory and enforcement authorities and international and multilateral institutions; and the day-to-day lawyering skills required of practitioners. Through readings, lectures, case studies, class discussions, and potential guest speakers, the course aims to introduce students to significant substantive and practical issues in international anti-corruption work and the fundamentals required for a future career in this exciting field.”

April 9, 2014

Announcing the 2014-2015 LIDS Co-Presidents!

We are pleased to announce Sarah Weiner (HLS ’15) and Beth Nehrling (HLS ’15) as the incoming Co-Presidents of the Harvard International Law and Development Society for the academic year 2014-2015. Sarah and Beth are inspiring in their commitment to international development and their strong vision for LIDS going forward. Read about their vision for LIDS in the coming year below. We hope you will join us in congratulating Sarah and Beth!

Beth & Sarah’s Co-President Vision Statement: Institutionalizing LIDS

LIDS had a momentous 2013-2014 school year! Becky and Raj delivered on their promise to raise LIDS’s profile through our online presence, collaboration with our member schools, and events at HLS, such as the International Women’s Day Exhibition. LIDS embarked on an exciting initiative to connect with students at law schools around the world that are interested in development. And the Projects Team received a record number of proposals from organizations wanting to have an Orrick-LIDS team complete a project for them. Our goal for 2014-2015 is to build on that success and ensure that LIDS becomes institutionalized—both online as a space to debate law and development issues and at HLS and LIDS partner schools as a firmly established student organization.

To this end, our plan as Co-Presidents is to focus on four main areas:

Continue to raise our profile, particularly online, and to use our presence to shape the debate about law and development
Institutionalize and grow LIDS Global
Continue the project model and ensure that students have an enjoyable and meaningful experience
Find ways for members that don’t have the time to commit to a project to get involved with LIDS

1. Using our presence to shape the debate about law and development

The field of development is currently in a state of flux. We have moved beyond the neoliberal movement of the 1980s where the simple prescription for how to develop was to privatize, strengthen property rights and remove government distortion of prices. There is debate about what development means, why some countries have developed faster than others, and the policies governments should enact to promote development in their country. The role of law is a major component of this debate.

LIDS should not only engage with this debate, but should also try to shape it. Some key ways LIDS can begin to do this are:

Continue to encourage members to post on our blog about current events and important issues related to law and development.
Find a way to encourage blog posts to become a dialogue—through comments or perhaps through “response posts,” where someone presents the other side of an issue discussed in a previous post.
Reach out to academics at Harvard and other schools to produce content for our blog.
Strategically picking our Symposium and White Paper topics to address the issues that are at the heart of this debate about the role of law and development

2. Growing LIDS Global

The 2013-2014 school year saw the introduction of a LIDS Global pilot project in which LIDS worked with university students in 6 different countries to establish 6 independent student organizations interested in law and development. Each organization, with guidance from LIDS Co-VPs of Collaboration, conducted research on corruption and remedies for corruption in their area of the world to complement and further dive into the issues discussed in LIDS 2012-2013 year White Paper project on corruption. Creating a network to facilitate this type of global peer-level learning and conversation is an additional way of shaping the debate as discussed in goal 1.

The results in the pilot year have been encouraging, and the 2014-2015 school year presents the chance to build upon the relationships and lessons learned from this year in efforts to further institutionalize and grow LIDS Global. Some possible actions to focus on are:

Maintain and continue to grow the relationship with the 6 student groups established this year.
Evaluate and further refine the collaborative research model that was established for the pilot program as a way to engage students on a global level. Particularly focus on opportunities to create conversations and collaborations globally and in real-time across the different groups.
Facilitate a collaborative scheme with student groups globally focused on an international law and development theme.
Create opportunities for Cambridge-based LIDS students to be more actively and routinely engaged with members of the international student groups participating in LIDS Global.

3. Continuing and Refining the Project Model

LIDS projects remain the central way that students across the Boston schools get involved with LIDS. We have firmly established our relationship with Orrick LLP and will continue to work with them in the coming year. We have grown from having to sell organizations on the value that a project can add to their work to having more organizations apply to have us complete projects than we could possibly take on. However, we should continue to improve our Project Model to ensure students have the best experience possible.

For example, during the 2014-2015 year, LIDS can:

Improve knowledge management on what makes projects successful through the creation of a database on a secured location where we can store detailed information related to past projects.
Consider ways to improve both team leader and team member trainings to be more interactive and meaningful.
Find a way to gather more meaningful data from students that participate in projects about their experience and how they think it can be improved.

4. Engagement with members outside of projects

Joining a project is a big time commitment, and we understand that busy graduate students don’t always have that time to commit. Therefore, our final key goal for 2014-2015 is to find ways for members to engage with LIDS throughout the semester other than joining a project team. Some potential ideas to explore are:

Expanding development-related clinical placements for students over J-term.
Having a law student join a business school consulting team to handle any discrete legal issues that out integral to the business advice they are providing.
Putting together small groups of students to work on creating short, practical-based documents on issues relevant to development-focused organizations and entrepreneurs (i.e. benefit corporations, crowd-funding, etc.).
Creating and strengthening opportunities for students to engage in non-project LIDS activities, like the International Women’s Day Celebration and LIDS Live!
Planning and executing another successful trip modeled after this year’s DC trip where students can meet and network with practitioners in the field.

We hope you will join us for another successful year of LIDS!

April 9, 2014April 9, 2014

White & Case, arbitration and Latin America, oh my!

Come join LIDS for the following rescheduled event next Tuesday!

The Intersection of International Development and Dispute Resolution: Complex Negotiations and Crisis Management in Latin America

Tuesday, April 15, 5:00-6:30 PM

Langdell North

Jonathan C. Hamilton is Partner and Head of Latin American Arbitration for White & Case and a leading authority on international arbitration and investment, complex negotiations and crisis management. He will be speaking about his experiences in resolving a number of recent complex disputes in Latin America, which include the recuperation of the Machu Picchu artifacts from Yale University to the Republic of Peru, renegotiation of the Ecuador international airport concession in the face of treaty denunciation, resolution of the first World Bank case registered by a Latin American state, and establishment of a claims mechanism for Argentine sovereign debt (which was named the most influential arbitration decision of the decade).

Co-sponsored by the Harvard Law and International Development Society, Professor Jack Goldsmith, the Harvard Negotiation & Mediation Clinical Program, and the Harvard Negotiation Law Review.