AIJA Commissions Month: AIJA scholar shares her experience
26 November 2020
Alina Škiljić, a Croatian lawyer specialised in the areas of data and privacy protection, intellectual property, competition and corporate law, was granted a scholarship to attend the AIJA Commissions Month.
She shares her takeaways and deeper insights in the comprehensive article attached, where she details her impressions on the SCILL, T.R.A.D.E, Antitrust, IP/TMT, and Labour Law Commission Days.
I had the privilege and opportunity to attend the AIJA Commissions Month, an exceptionally insightful and interesting online event organised by the International Association of Young Lawyers (AIJA), from 20 October to 20 November 2020.
The event was hosted by AIJA’s 21 Commissions and covered the majority of law practice areas and professional interests. Leading legal experts from all around the world discussed and presented their experiences, advice and opinions on the latest legal topics and issues. One of the best things about AIJA’s event was its flexibility and inclusivity – once registered, the event offered a unique virtual passport which enabled all participants, including me, to attend the entire programme and to observe the interconnection of different legal fields, such as tech, IP, commercial and competition law, data protection and privacy, etc.
In this article, I present and discuss a vast array of topics that were examined through the SCILL Commission, T.R.A.D.E Commission, Antitrust Commission, IP/TMT Commission and Labour Law Commission programmes in which I have participated, and the insights and knowledge I have acquired through these Commissions thanks to the generously granted scholarship by AIJA. Where possible and appropriate, I also refer to the legal issues / solutions from my jurisdiction – Croatia.
· SCILL Commission Day
Firstly, I elaborate on the “Innovation – Legal tech development” webinar in which panellists shared their experiences related to legal tech development, and particularly on the presentation of Ms. Joyce Pitcher who presented three different legal tech projects she is involved with. I then share with the readers a very interesting definition and perspective of Mr. Grégoire Miot on Legal Tech, as having a two-fold approach: B2B and B2C.
· T.R.A.D.E. Commission Day
In the article I also elaborate on the insights I gained through the “Hot topics in international commercial contracts” webinar, which perfectly epitomised how lawyers advising clients in commercial contractual matters must be skilled in other areas as well, such as intellectual property and private international law. The speakers, Ms. Marika Devaux, Mr. Alessandro Paci and Mr. Gustavo Papeschi focused on presenting a selection of sensitive clauses in international commercial contracts – intellectual property, liquidated damages, and choice of law clauses, which was very insightful and has provided a lot of practical examples. The speakers also provided extremely useful and thoughtful drafting techniques and stressed out how being creative as a lawyer is very important.
· Antirust Commission Day
Further, I elaborate on my experiences from participating in the Antitrust Commission Day, and particularly on the amazing presentation and very useful insights given by Ms. Kingma, who presented the new policy of the Dutch Competition Authority which aims to promote sustainability in relation with the application of the Article 101(3) TFEU and addresses the exemptions for prohibited agreements.
· IP/TMT Commission Day
In the last part of this article, I share my experiences and acquired knowledge from the IP/TMT Commission programme, which was composed of four panels on Data Protection and Intellectual Property. I specifically address the cross-border data transfers, a topic which was addressed during a webinar on the implications of the ECJ’s “Schrems II” decision as of 16 July 2020. The decision declared the "EU-US-Privacy Shield" invalid and consequently caused that transfers of personal data to the US can no longer be based on the Privacy Shield. The discussion between Mr. Johannes Struck and Ms. Rim Ben Ammaron on the ECJ’s decision was very interesting and has provided me with some very interesting thoughts.
· Labour Law Commission Day
Finally, I elaborate on the webinar “Sensitive health data: can we afford to “close the eyes” towards data protection law in light of extreme situations?” and the webinar “COVID-19 – Health concerns and privacy issues” from the Labour Law Commission. I found particularly useful the scenario part of the webinar in which the speakers - Ms. Cabell Clay from the US, Mr. Philipp Haymann, from Switzerland, Ms. Ailie Murray from the UK and Ms. Chantal Bakermans from the Netherlands discussed COVID-19 related data from employees (e.g. information on travelling to “risky” countries, contacts, test results, etc.).
Participation in the AIJA Commissions Month has provided me with new and significant knowledge, legal thoughts, ideas for my further research, and with very beneficial insights into topics of interest and related to my specialisation. I am delighted to be sharing more information in this article for the AIJA community.
AIJA IP/TMT Commission report on technology measures in COVID-19 legislation
24 November 2020
In times of COVID-19 we quickly noticed that we often asked each other: how is it in your country? Being lawyers the topic quickly turned legal. To combat the spread of COVID-19, governments all around the globe have implemented measures, many of them significantly limiting freedoms which we take for granted and are also essential in a democratic society.
For example, governments implemented measures to track the movement of persons and, should they be tested positive, identify the people they have been in contact with. This tracking and identification are often achieved by technological means, such as with the help of apps or mobile phone data. Already before Covid-19 data protection and privacy and the identification of individuals - mostly by private companies - through browsers or mobile apps have been hot and controversial topics. The potential problems seem to intensify when governments employ the same techniques and measures they may have criticised and tried to reduce before.
AIJA is an international association of lawyers all over the world. The members of AIJA’s IP/TMT Commission deal with a broad range of topics in the fields of technology, intellectual property, telecoms, privacy and media. Especially IT and privacy lawyers have dealt with the issues described above for years. As such we are in the unique position to gather information on what type of technology-related measures governments around the globe have introduced or are planning, their acceptance and impact.
Members of the IP/TMT Commisison have gathered interesting information by creating a questionnaire answering the questions mentioned above. With an input from 21 countries, the Commission, in this report:
- Provides you with an overview of the results in a quick reference table, followed by a summary;
- Provides you with the names and contact details of our contributors;
- Provides you with the answers to the questionnaire per country;
Enjoy your read!
Libya: outspoken Benghazi lawyer murdered
17 November 2020
The AIJA Human Rights Committee shares with us the latest news on Libyan lawyer’s murder as well as a call to action by the Human Rights Watch.
Libya: outspoken Benghazi lawyer murdered
On 10 November, Hanan Al-Barassi, a Libyan human rights activist lawyer was killed in the city of Benghazi.
Eastern Libyan authorities should promptly investigate the apparent politically motivated killing of a lawyer. Hanan Al-Barassi, an outspoken critic of violations by armed groups in eastern Libya, was shot dead in Benghazi by an unidentified masked gunmen on 10 November 2020. She said that she had received numerous death threats in the days leading up to her killing.
“The killing of an outspoken lawyer in broad daylight in Benghazi will send chills through activists across the region,” said Hanan Salah, senior Libya researcher at Human Rights Watch; an organisation that investigates and reports on abuses happening in all corners of the world. “This brutal killing smacks of a cold-blooded execution. The only way to end this cycle of violence is if authorities hold criminals to account for these terrible acts.”
The International Criminal Court (ICC) has a mandate to investigate war crimes, crimes against humanity, and genocide in Libya since 2011. A recently established UN fact-finding mission on Libya has the mandate to investigate serious violations in Lybia in the country since 2016. They should put their mandates to good use to support a credible, independent investigation into Al-Barassi’s killing.
Read more about Human Rights Watch’s call to action here.
AIJA Insolvency Commission report: Emergency measures in response to the COVID-19 crisis
09 November 2020
The COVID-19 pandemic has plunged businesses around the world into financial difficulty and led to an unprecedented surge of emergency legislation in virtually all jurisdictions. In many jurisdictions, these measures include direct intervention in the debt enforcement and insolvency system. Governments have been quick to adopt sweeping changes to Insolvency regimes to avoid viable businesses collapsing, including relaxing rules on directors’ duties pre-insolvency and preventing creditors from seeking to place businesses into insolvency processes.
In light of this unique situation and as a helpful tool for its members, the AIJA Insolvency Commission has assembled a compilation of short factsheets providing an overview of what has happened in our members’ jurisdictions. click HERE to access the document.
Members have volunteered and contributed to this compilation by providing a short factsheet for their respective jurisdictions.
We hope that this contribution will be able to provide you with a useful insight into what is happening or has happened in other jurisdictions and wish you a pleasant reading.
Situation in Poland – Women rights at risk
03 November 2020
Agata Adamczyk shares an insight into the ongoing demonstrations about women’s rights in Poland. For the past two weeks, Poles have protested in several cities against a constitutional tribunal decision that bans abortion in case of lethal defects of a fetus.
Agata Adamczyk is the AIJA Poland National Representative and VP of the International Business Law Commission.
Situation in Poland – Women rights at risk
On 22 October 2020, the Polish Constitutional Tribunal pronounced a judgement where it declared the unconstitutionality of the legal provision which allows for an abortion in case the prenatal testing indicates high probability of a severe and irreversible defect of the fetus or its incurable disease jeopardising its life.
As a result of this judgement, in case of lethal defects of a fetus, a woman will be obliged to continue the pregnancy until birth or until the natural death of the fetus.
This decision of the Tribunal exposes the fundamental human right of the unborn child – a right to life. It ignores, however, at the same time, the right of a woman to dignity, safety, and personal freedom.
Women have been treated as objects and have been denied their fundamental rights. Mothers, as well as the fathers of the babies and their families will be exposed to an unimaginable psychological trauma and physical suffering. This inhumane and humiliating treatment is forbidden by the European Convention on Human Rights, in which Poland is a signatory.
The judgement has also provoked strong objections due to the fact that it was rendered by the judges the impartiality and independence of whom have been called into serious and justified question. Their nomination to the tribunal in December 2015 was a consequence of the « annullment » of the nomination of judges previously elected by the former Parliament. This decision, commented as purely political, has been criticised not only in Poland but also on an international level (European Commission, European Parliament) as being contradictory to the rule of law and putting the democracy at danger.
Polish legal regulations on abortion are one of the most restrictive in the EU. The current legislation has been in force for the last 23 years and has been called a compromise between the liberal part of the society and the conservative part, which is strongly linked to the catholic church.
In recent years, a number of amendments have been proposed to the law on abortion, aimed at restricting further the right to a legal abortion. In 2016, this legislative initiative provoked massive protests in Poland, the so-called « black marches » during which thousands of women and men manifested in the streets with black umbrellas in their hands.
The proposed amendments of the law on abortion did not gain necessary majority in the Parliament neither in 2016 nor in the subsequent years, thus the law on abortion remained unmodified.
For this reason, members of a Parliament group brought a claim to the Constitutional Tribunal arguing that the incriminated legal provision is allegedly contrary to the Polish Constitution which, obviously, protects the fundamental right to life.
One of the members of Parliament who signed the petition to the Tribunal in this case is currently one of the judges who were sitting on the jury who pronounced the judgement on 22 October 2020. This situation provokes doubts based on the undisputable rule "nemo iudex in causa sua".
Due to the nature of the proceedings before the Constitutional Tribunal, this matter has not been subject to any public debate. What needs to be exposed is that the decision was pronounced in the time of the COVID-19 crisis when the fundamental right of gathering has been severely restricted. Many people are in quarantine due to the sanitary requirements and are not able to express their protest freely. Still, thousands of citizens have protested every day since Friday, 23 October 2020 in multiple cities, towns, and villages all across Poland. The protests continue.
The bar associations, the universities, and the NGOs active in the field of human rights have expressed their open protests against this judgement. The United Nations experts on human rights have also officially expressed their solidarity with the women in Poland and have called on the authorities to safeguard the rights of women and men who are protesting against this ruling.
Two judges who were sitting on the jury of the Tribunal brought their votum separatum, expressing their objection against this ruling and indicating in detail in which way it violates women’s rights and the rule of law. Among others, they have stipulated that this decision should not have been adopted for formal reasons and that the proceeding should have been closed without the decision as to the substance because the competence to regulate this very controversial and complex topic lies with the legislative power and not with the judicial power. It has been exposed that the Tribunal should not be used as a shortcut to change the law in case it cannot be modified by the Parliament due to the lack of the necessary majority.
Picture taken by Maciej Margas, @polandonair photographer.