Lawyers for Economic Advancement and Development

This past week I was in Hong Kong for the 2018 Asian Financial Forum ("Steering Growth; Pioneering Innovation"). You can see a number of my updates from the Forum and associated events on my LinkedIn and Twitter pages. 

With my return to Sydney, I am spending most of this weekend judging essays on the topic "How can banking regulatory law reduce poverty and support economic development?" for Lex:lead: Lawyers for Economic Advancement and Development, an international charity registered in New York (I serve on its Senior Advisory Board).

Launched with funding from the International Bar Association Foundation in 2010, Lex:lead runs an annual essay competition on topics of law and development open to students in the world's approximately 50 least developed countries.

I am sure that my fellow judges from around the world are as pleased as I am to be reading such original and thought-provoking contributions by students from across the world's least developed countries.

Winning papers will receive a cash prize and be published by the International Bar Association (see https://www.ibanet.org/IBA-Foundation-publications.aspx).

If you know someone who would be interested in supporting the work of the group, or want to participate in its competitions, scholarships, and internships see below for details. 

Website: www.lex-lead.org
LinkedInhttps://www.linkedin.com/groups/4367015.
Facebookhttps://www.facebook.com/Lexlead-Lawyers-for-Economic-Advancement-and-Development-156118134426966/.

2018 Judges:

  • Hon. Sir David Baragwanath KNZM QC, New Zealand - Special Tribunal for Lebanon
  • Hon. Sir Charles (Dennis) Byron PC, St Kitts and Nevis - President, Caribbean Court of Justice
  • Hon. Justice Aminatta LR N'gum, Gambia - UN Mechanism for International Criminal Tribunals
  • Hon. Justice Joaquine De Mello, Tanzania - High Court of Tanzania
  • Hon. Justice Iain Morley QC, United Kingdom - formerly UN International Criminal Tribunal for Rwanda
  • His Excellency Ambassador Peter Maddens, Belgium - Government of Belgium
  • His Excellency Ambassador Deepak Dhital, Nepal - Permanent Representative of Nepal to the United Nations
  • Professor Francis Ssekandi, Uganda - Columbia University and Judge, World Bank Administrative Tribunal
  • Professor Uma Tripathi, India - St John's University
  • Professor John Mukum Mbaku, Cameroon - Weber State University
  • Dr Phillip Tahmindjis AM, Australia - International Bar Association Human Rights Institute
  • Dr Marta Pertegas, Spain - Hague Conference on Private International Law
  • Ms Dianna Kempe QC JP, Bermuda - formerly Appleby, Spurling and Kempe, International Bar Association
  • Mr Fasil Amdetsion, Ethiopia - formerly Ethiopian Ministry for Foreign Affairs
  • Mr Christian Loubeau, USA - US Department of State
  • Ms Imrana Jalal, Fiji - Commissioner, International Commission of Jurists, Asian Development Bank
  • Mr Takeh Sendze, Cameroon - UN Mechanism for International Criminal Tribunals
  • Ms Samantha Jallah, Liberia - Office of the General Counsel, Liberian Awards
  • Ms Adejoke Babington-Ashaye, Nigeria - World Bank
  • Ms Paige Berges, USA - A4ID and Lawyers Without Borders, Barclays
  • Mr Michael Adenuga, Nigeria - formerly Commonwealth Secretariat

 

Proof of Foreign Law: Sydney Conference on Commercial Issues in Private International Law

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Dominique Hogan-Doran SC will present on "Proof of Foreign Law" at the Sydney Centre for International Law's Conference on Commercial Issues in Private International Law to be held on 16 February 2018.

Jura novit curia ("the court knows the law") is a maxim known both to the civil law and common law worlds. However, whether this maxim also applies to foreign law is something on which various legal systems disagree.

The litigant's burden of having to invoke and prove foreign law continues to prove challenging. Failure to discharge the burden could harm a litigant's case, including dismissal of their claim or defence, or the application of unfavourable forum law. Should judges be entitled to rely on paid witnesses to "spoon feed" them foreign law  that can be found well explained in treatises and articles readily available on the Internet? This presentation will consider troubles with proof of foreign law and consider recent cases from Australian and UK courts, as well as comparative law approaches.

Website: Register Here
Location: Sydney Law School, New Law School Building (F10), Eastern Avenue, Camperdown
Phone: 02 9351 0429
Email: law.events@sydney.edu.au

Managing Culture: A Good Practice Guide

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ASIC recognises that culture is at the heart of how an organisation and its staff think and behave, while APRA directs boards to define the institution’s risk appetite and establish a risk management strategy, and to ensure management takes the necessary steps to monitor and manage material risks.  

Whilst regulators don’t dictate the type of culture organisations need to have, culture is nonetheless part of their risk based surveillance and compliance reviews, looking at issues like remuneration structure, whistleblowers and complaints handling, as an indicator of bad culture and thus misconduct risk.

Managing Culture: A Good Practice Guide” is thus a timely and practical guide newly launched by the Institute of Internal Auditors - Australia, The Ethics Centre, Governance Institute of Australia, and Chartered Accountants Australia and New Zealand.

The launch today at The Ethics Centre in Sydney was accompanied by an insightful panel of expert commentators, ASIC Commissioner John Price, Elizabeth Johnstone, Pauline Vamos and Ethics Centre chief Simon Longstaff.

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This guide argues that an ethical framework – which is different from a code of ethics or a code of conduct – should sit at the heart of the governance framework of an organisation. An ethical framework includes a clearly espoused purpose, supported by values and principles. 

You can download a copy of the paper here: http://ow.ly/Fpo930ha3Rs

Royal Commission into Banking, Insurance & Financial Services Announced

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The Australian Government has today announced a broad-ranging Royal Commission into misconduct in the banking, superannuation and financial services industries.

The scope of the Royal Commission will be significantly wider than anticipated by many.

The draft terms of reference, which will become the Letters Patent when issued by the Governor-General, indicate the Commission is expected to inquire into conduct by ‘financial services entities’, being:

  • authorised deposit-taking institutions
  • insurers
  • AFSL-holders and authorised representatives and
  • RSE licensees (and those connected to such licensees) of registrable superannuation entities (nb this excludes self-managed superannuation funds).

The type of ‘misconduct’ the focus of the Commission’s inquiry is expected to extend to misleading or deceptive conduct, breach of trust, unconscionable conduct and breaches of professional standards. It is not limited to conduct which constitutes a criminal offence under financial services laws.

The draft terms of reference require the Commission to inquire into the following matters:

1. The nature, extent and effect of misconduct by a financial services entity (including by its directors, officers or employees, or by anyone acting on its behalf).

2. Any conduct, practices, behaviour or business activity by a financial services entity that falls below community standards and expectations.

3. The use by a financial services entity of superannuation members’ retirement savings for any purpose that does not meet community standards and expectations or is otherwise not in the best interest of members.

4. Whether any findings in respect of those matters:

- are attributable to the particular culture and governance practices of a financial services entity or broader cultural or governance practices in the industry or relevant subsector and

- result from other practices, including risk management, recruitment and remuneration practices;

- the effectiveness of mechanisms for redress for consumers of financial services who suffer detriment as a result of misconduct by a financial service entity

5. the adequacy of:

- existing laws and policies of the Commonwealth (taking into account law reforms announced by the Government) relating to the provision of financial services;

- the internal systems of financial services entities; and

- forms of industry self-regulation, including industry codes of conduct; to identify, regulate and address misconduct in the industry, to meet community standards and expectations and to provide appropriate redress to consumers and businesses;

6. the effectiveness and ability of regulators of a financial services entity to identify and address misconduct by those entities;

7. whether any further changes to:

- the legal framework

- practices within financial services entities and

- the financial regulators

are necessary to minimise the likelihood of misconduct by financial services entities in future (taking into account any law reforms announced by the Government) and

8. any matter reasonably incidental to a matter mentioned in the above paragraphs.

The Commission is to give priority to matters which have “greater potential for harm” if not addressed “expeditiously”.

The Commission is expected to submit an interim report to the Government by September 2018, with a final report (including findings and recommendations) due within 12 months and before 1 February 2019.

Recent Developments in Banking & Financial Services Regulation

There are numerous changes afoot in the regulation of banking and financial services in Australia. This blog surveys: establishment of an Australian Financial Complaints Authority, the new professional standards regime for financial advisors, the first civil penalty case for breach of the FOFA "best interests" duty, the proposed Bank Executive Accountability Regime (BEAR), and the new ASIC industry funding model.

International Bar Association Presentation on Good Advocacy in Mediation

My presentation at the International Bar Association's Annual Conference on "What role has good advocacy in mediations?" on Tuesday 10 October is now available for download (as PowerPoint PDF) and as an audio file.

The panel was hosted by the IBA's Arbitration Committee, Forum for Barristers and Advocates (Lead), Litigation Committee, and Mediation Committee.

Thanks to our panel chair David Barniville SC, Co-Chair of the Forum for Barristers and Advocates, our panel moderator Winnie Tam SC, past Chair of the Hong Kong Bar Association and fellow panelists.

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On the Work of the International Court of Justice

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His Excellency Judge James Crawford SC was our guest at the Australian Bar Association Conference held at the Inns of Court in London in July. 

The transcript of our Q&A Session is now available. 

Judge Crawford also joined us in Australia this month, to deliver the 10th Patron’s Address for the Australian Academy of Law on the “Work of the International Court of Justice”  in the Ceremonial Court of the Federal Court of Australia in Sydney. The vote of thanks was delivered by Emeritus Professor Rosalind Croucher, President of the Australian Human Rights Commission.

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In addition to delivering an erudite and comprehensive address (from just a single page of notes), Judge Crawford graciously and in good humour took numerous questions from the Australian judiciary, practitioners and students in attendance.  This included my own question as to what he enjoys most about his work on the ICJ (answer: the deliberative process; being conflicted out from certain cases based on his previous extensive advisory practice not so much!).

Women on Boards' Australia Sydney Directors' Circle, "Conflicts of Interest & Duty"

Delighted to lead a fantastic group of experienced and interested directors at last night's Women on Boards Australia's Sydney Directors' Circle discussing and debating Conflicts of Interest and Duty. Disclose early and often!

Introductory audio/Part I remarks available for download (17 mins)

If you would like a copy of the accompanying slides please email dhogan@barnet.com.au.