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NEWSLETTER(Page 5)
Main Index
Index:
* IBA Buenos Aires Conference - Section 2-1 of 4
* IBA Buenos Aires Conference - Section 2-2 of 4
* IBA Buenos Aires Conference - Section 2-1 of 4
| IBA Daily news Buenos Aires Conference 2008 Monday October 14 |  |
The good, the bad and Sarah Palin
When Jose-Miguel Vivanco walked into his hotel room on September 19, the police were waiting for him. They had entered his room while he was
out, packed up his luggage and, when he returned, promptly informed him
that he was in violation of the principle of non-interference in domestic affairs.
Vivanco was expelled from the country, returning to the Human Rights
Watch offices in Washington, DC. Vivanco, who is the HRWs executive
director for the Americas, was expelled for his report on the state of
human rights in Venezuela. It was ironic, therefore, that the government took just a few hours to expel him, supporting Vivancos conclusions on both human rights and the freedom of expression in Hugo Chavezs Venezuela.
Carlos Ayala told this story to an intimate gathering of media lawyers yesterday morning, expressing his dismay at the governments reaction.
Ayala, the President of the Andean Commission in Caracas, said that across
Latin America human rights are under threat from elected governments
through the suppression of information.
It is an undermining of freedom of expression by new means, he said, also
remarking that he often feels it necessary nowadays to distinguish between
democracies and elected governments.
But its not all bad. In fact, most of the first half of the session was concerned with the landmark case of Claude Reyes et al. v Chile, 2007. Aside from its importance for access to state information, the reason for focusing on this case was the presence of Juan Pablo Olmedo,
who represented the defendants in Reyes. In fact, it was announced just last
week that Olmedo will be a member of the four-person Transparency Council that has been set up by the Chilean government in response to Reyes.
The decison was a pathbreaker in making access to public information a
human right, said David Schulz, partner at Levine Sullivan Koch & Schulz
and chair of the session.
Historically, it has been a struggle for lawyers to get the ability of citizens
to access state information enshrined as a fundamental human right. Even in
Europe, the Court of Human Rights has been reluctant to fully recognise
this ability. It was important, therefore, that in Reyes the Inter-American Court reached its decision under the general priciple of a democracys responsibility to be transparent.
The role of exemptions in Reyes drew several questions from the audience.
If information can be kept secret if it is in the national interest or simply
something that would affect the functioning of the government body,
how will anything be released to the public?
David McCraw, counsel at the New York Times Company, had an interesting perspective on exemptions. When asked whether lawyers word their requests for information very specifically in order to avoid these exemptions, McCraw agreed that they did, but that inquiries from journalists tend in the opposite direction.
The idea of legal discovery is seeping into journalists requests for information, which makes them rather too broad, he said. I saw one recently that was sent to Governor Sarah Palins office in Alaska. It asked for any and all information pertaining to, connected to or in any other way relevant to the subject. Well, thats going to be every piece of information
the office has, and isnt really going to help your enquiry.
Elsewhere, Michael Smyth of Clifford Chance told the audience that
journalists consider the UK Freedom of Information Act a big disappointment. It means there are fewer scoops. If a journalist follows up a lead and tries to get information from a government department, it will often
just put that information on its website rather than giving it to the journalist.
The impact of Reyes will reach far and wide. There has recently been a
new law in Uruguay, Mexico is looking at something similar and it is
expected to affect the European Court of Human Rights and the African
Court on Human and Peoples Rights in Tanzania.
But Olmedo revealed exclusively that the case is now over. I have not revealed this before, but we have agreed to end the Reyes case and bring
no more actions as long as the government promotes the new law among the judiciary, he said. As theres a journalist in the room Im sure this will be
reported, so now its news.
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Environment Law
Heres my blueprint for climate change
In a critical global address given in the Golden Horn room yesterday, Shells
Beat Hess spoke about the legal challenges for lawyers and fossil fuel companies that result from climate change. There is no silver bullet, he said. There is no one answer. If the world is to meet the solution to the energy challenge it will require hard work from everyone.
Hess, also a member of the Corporate Counsel Forum Advisory Board, laid out two paths, the scramble and the blueprint, that the world could travel down. The scramble plan involves international competition, with companies and governments making deals with each other.
Those immediate answers will exhaust the coal and oil supplies, creating further global climate change and drastic weather events. The outcome will put pressure on governments and knee-jerk reactions, he said. All of this will give rise to global climate change because the sensible solutions
will be ignored.
The better solution is the blueprint. Hess joked that this part of the speech would take less time; partly because it was a better plan, and partly because he only had two more slides left.
In it cross-border methods address solutions such as biofuels and cap-and-trade, to create a harmonised market. By 2050 it could cut carbon-dioxide emissions by more than 30%. These cooperative efforts will create more success and less volitility in the market, said Hess.
Even in the blueprint plan, fossil fuels will be needed to bridge the gap until infrastructure and industry can catch up. The next five years are crucial, but we cannot do it without legislative cooperation, including efficiency in the transport sector, credible wind and solar targets and robust standards
for holding carbon, he said.
Guillermo Malm Green of Brons & Salas, from Buenos Aires, also went through three distinctly different countries and their development of political strategies to deal with global climate change: Argentina, the US and Canada.
Green explained how the politcal struggle for power between local and federal governments is viewed through the countrys environmental policies. In the western provinces of Argentina the federal government is attempting to impose standards among local businesses affecting pollution in the river border with Uruguay.
The provincial governments allow the federal government to impose minimum standards, but the federal government is trying to extend that power in hopes of stronger regulation.
The pollution of the river triggered a lot of action from the senate and this had local industries arguing for a better balance of power, he said. The provinces literally destroyed bridges to get the government to stop overriding them.
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Criminal Law
If you use a detective you could go to jail
Lawyers that hire private investigators could face criminal charges if investigatory regulations are breached. Discussing UK privacy and surveillance laws at yesterdays Industrial Espionage and Competitive Intelligence working group, financial fraud expert Brian Spiro of BCL Burton Copeland said that simply saying please dont break the law is not enough.
In a presentation that focused on the legal limits when private investigators are used to establish industrial espionage, Spiro made it clear that company owners were not the only ones at risk if privacy laws were broken.
He also argued that, given their professional legal knowledge, lawyers should be more aware of the risks and could find it more difficult than a corporate CEO to argue their ignorance of any illegal activity.
According to Spiro, the days where companies could claim to be ignorant of private investigators you dont want to know methods are over, and that this was no longer a valid means of protection or defence for those employing the PIs.
Under the Regulation of Investigatory Powers Act (Ripa) passed in 2000 by the UK Home Office, surveillance measures such as phone tapping, call interception and computer hacking are classed as criminal acts unless
authorised by the owner of either the information or the telecommunications system.
And whether the private investigator is acting with the prior knowledge of his employer or not, if he is found to have broken the terms of Ripa in obtaining competitive intelligence both parties can be charged.
Responding to a question from Steven Williams of Nabarro, who expressed concern over his own use of private investigation firms, Spiro said that an explicit instruction to a PI not to break the law wouldnt be enough to protect a lawyer from prosecution, and could actually incriminate them.
Written into any request to remain within the law is an acknowledgement of the potential for law breaking, said Spiro, who went on to urge lawyers to be very precise about what you ask a private investigator to do.
In a session that included speakers from Switzerland, the British Virgin Islands and IBA hosts Argentina, all made it clear that investigations into industrial or corporate espionage vary widely from country to country.
There was also agreement that such cases were dominated by questions of jurisdiction, particularly with computer crime.
Discussing what he called e-procurement fraud, where a remote hacker accesses sensitive company information and sells it to the highest bidder, Steven Williams said there was little hope for overlooked competitors to claim compensation. Aside from the difficulty of locating an anonymous hacker, Williams said that such individuals had no duty of care to an employer, and therefore there was no obvious cause of action against them.
Session chair Charles-Henri De Pardieu of De Pardieu Brocas Maffei reiterated the threat that computer crime poses when he said that justice is competing with the internet and theres no way it can win; its just too slow.
Williams civil law perspective implied that only in cases where an insider had provided the intelligence could damages be sought, and even then it would be the moles employer who would be liable, not the competitor who
had used the information.
Local Argentine lawyer Roberto Durrieu from Estudio Durrieu drew attention to the historical correlation between economic crises and industrial espionage legislation changes, going as far back as 1929 when the concept of corporate crime was first introduced.
Durrieu charted the development of corporate corruption regulations throughout the century, up to the introduction of private corruption legislation by the US government in December 2003 following the high-profile Enron and Parmalat cases.
He also spoke of the different legal processes across countries, with particular reference to Latin America, where no system of criminal liability exists for corporations.
All speakers agreed that computer crime was the single biggest challenge to preventing and contesting industrial espionage, with Steven Williams calling it a new threat to the integrity of all tender processes.
Durrieu cited a hypothetical case where a hacker operating somewhere in Latin America accesses information held at a US companys headquarters. In such a case, which jurisdiction has governance over the hackers actions, and can there be any potential for cross-border legal action for victims?
Perhaps this is a question that can be answered by the presentation of the IBA Legal Practice Divisions task force on extraterritorial jurisdiction tomorrow morning.
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IBA POLL: RULE OF LAW
Latin America needs to catch up
Nicholas Pettifer analyses the IBA Poll results and finds that while there is
good news for the rule of law, Latin America has its problems
The rule of law worldwide is under less threat than last year according to a poll of IBA members. But there is a more pronounced concern about the legal systems in Latin America.
The IBA Daily News polled members on this and other subjects in an anonymous online survey ahead of this years conference. Last year, 57% of respondents felt that the rule of law was under threat in their jurisdiction compared to 51% this year. This marginal swing indicates that there are still a lot of global concerns, although there has been a slight improvement.
Latin America concerns
But it was a new question that provided the most interesting results. More than two-thirds of respondents believe that the rule of law is under threat in Latin America specifically. The most pressing concern by far was succinctly described by a German lawyer: Pseudo-democratic dictatorships are on the
rise.
A Brazilian counterpart agreed: It concerns me that there is a progressive lack of independence among the executive, legislative and judicial authorities in countries such as Venezuela, Ecuador and Peru. The constitutional principle of checks and balances cannot be duly exercised.
Many of the comments left by members singled out Venezuelan president Hugo Chavez for particular criticism.
But the overwhelming impression of respondents is that there is a movement away from democracy towards populist dictators.
Corruption within the judiciary and public authorities was also high on the list of members concerns, alongside over-zealous censorship and the influence of drug cartels in the region. A significant number of members also expressed concern over property laws. The feeling is that they can be
(and are) changed so frequently that it is nearly impossible to keep track. The unfair expropriation of assets is a major problem too.
The combination of all of these aspects has undermined public confidence in Latin American law. People do not believe in justice or in the legal system, said one Portuguese lawyer. It takes too much time, effort and money people prefer to solve their problems on their own, which leads to serious problems.
Global problems
Although the percentage of members that feel the rule of law is under threat in their jurisdiction has fallen, the majority is still worried.
As with the Latin American comments, corruption was a major worry among lawyers worldwide. But there were also suggestions that judiciaries are often weak. One exasperated Malaysian lawyer said that: The selection of the judiciary often leads to judges who have no character to withstand the directions of the executive.
Similarly, a Pakistani lawyer revealed that he has doubts about the independence of the judiciary due to the alarming influence of previous and existing governments on the appointments of judges in the superior courts.
There are also problems in the Philippines: Violent revolution, rampant criminality and corruption foster cynicism about the legal process, said one lawyer.
Core values threatened
Elsewhere in the poll, there was a 10-point swing towards the belief that the core values of the profession are under threat.
Last year 55% said yes, but this year the figure is 65%. The vast majority of comments referred to the fact that attorneyclient privilege appears to be getting chipped away bit by bit.
One lawyer from the British Virgin Islands said: In the US, where I am also admitted to practice, efforts to erode attorney-client privilege under the guise of homeland security are troubling.
This was a common concern in many other jurisdictions too. From Bermuda to Ireland and from Nigeria to Turkey, respondents bemoaned the lack of enforcement of privilege.
Rule of law is under threat:
. AUSTRALIA: Politicians are too willing to pander to powerful special interest groups
. CROATIA: There is a selective application of laws by politicians and big business
. INDIA: There is a lack of transparency and accountability in judicial appointments
. JAPAN: Antitrust laws and consumer protection laws suffer in Japan
. MALAYSIA: Judges are so corrupt and easy to influence
. NIGERIA: Rule of man is rearing its ugly head
. PAKISTAN: There is no rule of law because our 60 judges were suspended
. PHILIPPINES: Violent revolution, rampant criminality and corruption foster cynicism about the legal process
. SOUTH AFRICA: There are continuing attacks on the integrity of the judiciary
. UK: Demands for the incorporation of shariahlaw will undermine the UK
. US: Bush eroded the rule of law with the treatment of potential terrorists
In your opinion, is the rule of law under threat in your jurisdiction?
No 41%
Yes 51%
Is the rule of law under threat in Latin America in particular?
No 30%
Yes 70%
Do you feel that the core values of the profession such as independence and attorney-client privilege are under threat?
No 35%
Yes 65%
Should training in legal ethics be a requirement to become a lawyer?
No 05%
Yes 95%
Please describe your role:
No 27%
Yes 73%
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PROFILE: JEFFERSON MICELI, BANCO PINE
Floating a bank in Brazil
Conducting the first IPO for a Brazilian, mid-market bank marked a turning
point in Jefferson Micelis career, says Ryan Pasquale
Jefferson Micelis first year as superintendncia jur.dica for Banco Pine can best be described as trial by fire.
Surging Brazilian equity markets and rising commodities prices over the past few years have kept the countrys financial institutions racing to meet demand. Particularly affected are Brazils domestic banks, who look to service a growing middle class while continuing their expansion throughout Latin America and the Caribbean. For Miceli, this burgeoning middle market often volatile and always competitive is exactly where he wants to be.
Micelis legal career began in the offices of the Brazilian firm Tozzini Freire Teixeira e Silva Advogados as a junior associate. Rising through the ranks of the corporate practice, he soon recognized his desire for a larger perspective on the financial markets. When you work as an associate at a law firm, financial institutions look to your work in certain situations and you dont see where the client is profiting; you dont see the reasons for development in the transactions.
I wanted to understand that, the scenarios and the ways of thinking in a financial institution, Miceli says.
In 2002, he left Tozzini Freire for Banco Safra, a mid-market Brazilian bank. I always had this interest in working in financial markets and the opportunity at Safra gave me four years of experience, said Miceli. After serving as a senior lawyer for capital markets and investment funds work, Miceli moved again, this time to rival Banco Pine, in 2006. Still serving as a senior lawyer, he arrived at the bank as it looked to expand domestically and internationally. Within a year of being hired he became the banks lead in-house counsel.
When I was hired by Banco Pine, it was a completely different institution than it is today, Miceli says. As surging equity markets brought fresh capital to companies throughout the country, many through IPOs, Miceli notes how the average deal size soared in Brazil. The scope of the banks
lending increased accordingly, bringing it to the middle market position it is in today.
In June 2007, Banco Pine and Miceli realised their decision to become publicly traded on S.o Paulos stock exchange, Bovespa. Miceli describes the offering as a major transformation for the company. We were the first medium-sized bank in Brazil to go to the market. It was something new here.
We benefited from a market that was very active for investors, and we had a huge increase in capital which allowed us to make several operations we were not able before, says Miceli. In total, Banco Pine raised R$520 million ($273 million) through its share offering.
Highlighted in its latest earnings report was the banks growing corporate portfolio. Miceli says the banks collection of mid-market Brazilian companies as well as new, larger clients such as Petrobr.s, Brazils state-owned oil company, have come as a result of the IPO. After the IPO, we started to be looked at a different way by rating agencies, by foreign investors, even by the local market ... I dont see any negative angle to us going public, says Miceli. Without hesitation he describes the public offering as the greatest legal challenge hes undertaken since joining the bank.
The transition after to the IPO, however, included important changes for the general counsel position. Micelis role suddenly included serving as a conduit between the banks board of directors and its new shareholders, working to condition the relationship. The IPO also helped to revaluate the banks debt, facilitating several issuances of medium-term notes in the last year, the latest totalling $150 million in June 2008.
The establishment of the middle market in Brazil has created two encouraging trends for banks like Banco Pine. The number of deals originating in Brazil and of inter-Brazilian deals are both increasing.
Fragile as it may be, the countrys middle market is laying the groundwork for a sophistication many have long awaited. The institutions servicing this
market are only too happy to aid its growth.
But as this growth continues to run contrary to North Americas financial markets, Micelis optimism is coming under control, focusing on the banking sectors near term.
We are worried with what is happening in the US, he says. But the controlling shareholders [at Banco Pine] have more than 35 years of experience in the financial world. This tempered attitude applies to competitors as well. We have a lot of competition in the medium-sized
bank peer group, says Miceli, competition we always face. It will always be a difficult market, but we have been here for 10 years now and arent planning any differently for next year.
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LEGAL MARKET: CENTRAL AMERICA
Expanding expectations
Firms are growing, specialising and trying to do banks work for them in central America. Some think it will lead to takeovers by US firms, says Erin Kelechava
Now that we have the space to do it, we need to prove that we are ready, says Enrique Burchard, partner at the Honduran office of Aguilar Castillo Love.
Times have changed since law firms adopted a strategy of regionalisation in central America in the late nineties. The trend of regionalisation among central American firms seems to have reached its zenith. All the firms that have an inclination to regionalise have already done so.
Since adjusting to their new roles as regional players, these firms have begun to rapidly grow and diversify in response to the overwhelming demand for legal services across the area. The Guatemala office of Arias & Mu.oz, a
firm with offices across all five Central American jurisdictions, has doubled in size since 2006. In this region, where firms are still largely traditional and where lateral hires are relatively rare, this expansion is unprecedented.
With the onset of globalisation and the ratification of various trade agreements including the Central American Free Trade Agreement (Cafta), the region has seen an influx of foreign investment over the past 10 years.
Companies are predominantly entering the region through M&A activity or other financing opportunities, and firms have had to develop niche practice areas in order to better serve these clients, many of them multinational
corporations.
Because the regional firms that cater to international clients are all rather equally matched in terms of quality, inhouse counsel have been able to take advantage of the relative parity and demand more competitive prices. In the rush to attract the growing number of international clients and gain more exposure, marketing departments, which used to be non-existent at many of these firms, are quickly being created and receiving attention and investment.
But in the past year, the slowdown in the American economy meant that foreign investment into the region was curtailed. Lawyers are optimistic that their practices will remain active, and that growth will continue, albeit at a slower rate. Lawyers like Jos Augusto Toledo Cruz, a partner at the Guatemala office of Arias y Mu.oz, think that this downturn will not affect growth strategy for the long term, largely because the economy has diversified beyond the US, to include investors from Europe and Asia.
The effects of consolidation
In the early 2000s, the banking industry in central America was going through a period of consolidation. Large international banks saw opportunity in the emerging markets there and began buying up local banks in rapid succession.
In an effort to become more efficient after the acquisitions, many banks have delegated much of their legal work to outside counsel. The banks that have begun operating in central America in the past few years require not only a
larger volume of legal work, especially on compliance, but the work is more complex, and requires a deeper knowledge of specific areas.
Attorneys are in the process of accommodating the new needs of their banking clients, both by increasing the number of attorneys and familiarising themselves with the international regulations that are now standard operating procedure at these institutions. The more bureaucracy and the more detailed the compliance regulations, the more indispensable the central American firms are making themselves.
Banks are beginning to require answers to theoretical legal problems, rather than procedural questions.
The smaller local banks that remain are also interested in promoting efficiency to become more attractive acquisition targets. When the market was not deep or varied enough to require specialisations, general corporate
lawyers advising on general matters were the norm. In the headier times of the last 10 years firms found a need to develop specialisations like labour law, banking and finance. Firms are also anticipating an increase in work
for their litigation departments, as the parties to deals that
Expanding expectations
Enrique Rodriguez Burchard, Aguilar Castillo Love have fallen apart since the sub-prime crisis begin to weigh their options.
As Jos Augusto Toledo Cruz explains the trend 4towards specialisation, first a firm may work on one particular M&A transaction, but then you have an opportunity to keep the client, which would mean a lot of additional
corporate and labour work, if you are on the buyer side.
If you are representing the seller, you have the opportunity to have the buyer recognise the value of its opposing counsel, which could also result in more steady work.
The firms are gaining opportunities for sustained relationships with large companies in a way that they never have before.
Cafta changes the landscape
Another major change to the legal landscape was Caftas ratification in 2006. Lawyers across central America are enthusiastic about the number of cross-border transactions likely to emerge from Caftas implementation. In Costa Rica, for example, the agreement is expected to open up former state
monopolies in telecommunications and insurance. Both industries are candidates for privatisation, and have the potential to lead to a torrent of new work.
To meet these additional demands, firms have not only had to grow, but have had to develop a more diversified practice. For example, in Costa Rica, many firms have created more sophisticated real-estate departments. Firms like Consortium, Arias y Mu.oz, and BLP Abogados have capitalised
on the recent real-estate boom, and have had to grow in order to do so.
BLP Abogados has adjusted to the new legal environment by hiring more partners with expertise in industries with potential for privatisation. Five years after the firms founding, it is growing at an amazing rate. Even though the firm does not have a regional presence, there is enough work to
make it competitive within Costa Rica.
Firms have taken it upon themselves to facilitate a better understanding of the potential advantages to be gained from Cafta, and the other trade agreements that the countries have with countries like Chile, Colombia,
Mexico and Taiwan. There are many opportunities for entrepreneurs under these agreements, and of course lawyers familiar with the benefits and pitfalls are in high demand.
Specific developments
Each jurisdiction has had its own domestic developments that have contributed to the growth of the legal market. For example, in Honduras over the last two years there were acquisitions in almost all major industries. In the wake of this consolidation, newly acquired companies are beginning to adopt international regulations at the local level and are starting to make changes to their internal governance and oversight. All these adjustments require legal counsel, and in order to provide these legal services, firms have been expanding quickly.
According to Burchard at Aguilar Castillo Love, long-term growth will depend on the capacity of each firm to evaluate new opportunities and its ability to develop new services. At Aguilar Castillo Love, they are taking the idea of diversification seriously. The firm has recently developed a practice focusing exclusively on trademarks, and is considering creating a new department dedicated to corporate compliance, to help clients with
routine matters, like maintaining the corporate books, drafting powers of attorney and proxies, and other matters that are normally handled by lawyers working inhouse.
This practice makes sense given that many corporations, in an effort to reduce costs, are reducing their legal groups and outsourcing the work to corporate law firms.
Looking to the future
Some predict that in the next 10 years there will be interest from international law firms looking to establish a presence in Latin America.
Due to recent developments like Cafta, the US will continue to be the regions biggest trading partner, and US firms will only have a greater interest in acquiring central American firms.
There is speculation on whether or not international firms have designs on these regional players and whether they might be interested in making acquisitions in the central American legal market. Some are certainly of this
strategy, noting that large international firms are more comfortable with these regional firms assuming all the overhead, and are not eager to compete with firms that have long standing contacts and associations. According to
Jos Augusto Toledo, these international firms get responsiveness and the same quality of service from the regional firms here, with the upside that others are making the investments.
Perhaps Burchard best summed up the need for firms to continue the strategy of diversification: Clients have already seen that these regional firms can provide good service, but if the clients do not come you need to reimagine your business. These firms will need to face the challenges
posed by economic developments around the world in order to remain viable in an increasingly active and competitive market.
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PROFILE: FERNANDO PEL.EZ-PIER
Regional for a will be my priority
The leading Latin American lawyer and incoming president of the IBA is keen to increase the Associations presence in regional areas says Toby Marchant
What are you particularly looking forward to about the conference this year?
Its a great opportunity to have our annual conference back in Latin America. Its the third conference we have had in Latin America, the first being in Argentina 20 years ago and the other was in Mexico in 2001. Its a great opportunity for our members to meet for a week and take part in all the different sessions. Many of them will be analysing different fields of
international law and different forms of business transactions.
Are there any specific sessions you are looking forward to?
There are many sessions that present the delegates with an excellent opportunity to update their knowledge of the latest trends in arbitration, M&A, litigation, intellectual property and contract negotiations.
We also have several important showcases that relate to extra-territorial jurisdiction and the importance of the independence of the judiciary. This is important for many of our members in Latin America and around the world.
Is the principle of an independent judiciary coming under increasing threat in Latin America?
In certain jurisdictions, yes.
Would this be in the countries with populist/nationalist governments?
Yes, especially in Venezuela under Hugo Chavez; but also in Bolivia, Nicaragua and Ecuador. In these countries there is a serious threat to the independence of the judiciary.
Are there any speakers who you think will be unmissable?
I am very interested in hearing Julio Maria Sanguinetti, the former president of Uruguay, speak at the rule of law symposium.
I am also looking forward to hearing Leandro Despouy [Special Rapporteur on the Independence of Judges and Lawyers to the Human Rights Council of the United Nations] speak about the independence of the judiciary.
I have been impressed by the articles of his I have read. I believe that the prosecutor for the International Criminal Court, Luis Moreno-Ocampo, will be present as well.
Am I right in thinking that you will be the next president of the IBA?
Thats correct.
What do you most hope to achieve in your tenure as president?
Firstly, for 12 years I have been involved in the restructuring of the IBAs regional activities. I am the founder of the Latin America Forum. This conference is an excellent opportunity for a large number of delegates exposed to the region. These are very interesting times for Latin America. The continents jurisdictions are heading in different directions; it presents a
great challenge. Delegates can learn more about what is happening in the region and the business climate. Its an opportunity to analyse the problem we are facing in the region, especially regarding the rule of law.
I have been very involved in the regional activities of the IBA. When I took the position of secretary general I was entrusted by the former president to undertake the restructuring of the regional activities. First I worked with a task force; thats finished and weve presented recommendations to the management board. I have continued working with the regional fora, trying to increase their presence in the IBA and deliver a better service for their members. I will continue working towards this as president.
We have also been focusing on education in our regional and annual conferences. We launched the IBA diploma several years ago and we recently introduced the LLM. I will continue giving a priority to education, emphasising that our conference should improve the quality of legal practice and discussing new areas of practice.
Since the IBA was restructured, we have formed the bar issues commission which allows all the regional associations to discuss the different situations affecting the legal profession.
I will continue supporting this. We have also been organising regional conferences for bar leaders for the Americas (from Canada to Argentina). I will make sure that the IBA continues organising these regional conferences.
We organised a special programme for Asian developing powers in Singapore last year. This year we will have a special programme for developing powers in Latin America.
Are these the two regions where you are most looking to increase
the presence of the IBA?
We launched the North America forum two years ago. I am eager to continue giving the necessary support to ensure that the forum can
continue its development. I intend to focus on the Asia-Pacific forum because it covers a large region with multiple and complex jurisdictions.
Next September we are having a regional conference for the forum in Hong Kong. We are planning new activities in the region for 2009-2010.
We have also been working to relaunch the Arab forum. We recently opened our second office in the region in Dubai. I hope to increase our presence and activities there. I have been contact with our members in the African forum
as well, to support them and create a presence in Africa. I will continue supporting the work and activities of the human rights institute.
Are there any other parts of the world where you feel the rule of law or the independence of the judiciary is under threat?
I am sure that the countries I mentioned in Latin America are not the only ones where the rule of law is under threat. Not long ago Poland was facing serious problems in terms of the independence of the judiciary being
influenced by the executive. I have also read many articles about this issue in Russia.
Is Buenos Aires a city you know well?
I have made many visits to Buenos Aires for both pleasure and business. I like it very much.
What would you recommend for first time visitors to the city?
I think Buenos Aires offers a very interesting cultural life. It has great restaurants. Unfortunately the National Theatre is closed, but they have excellent ballet performances. Theres a really wide range of activities. The tango is incredible, you can spend several evenings learning to tango and watching tango dancers.
Are there any social events outside the conference hall that you are hoping to attend?
I am obviously looking forward to the closing [party] which is a tango evening. The Latin American lunch has also become very popular.
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Local Attraction: Wine
Argentine winemaking comes of age
Over the past few years, Argentina has grown from a plonk destination to true vintage. Here are the grapes to savour
On wine lists you will encounter while entertaining clients in Buenos Aires, malbec, torrontes and other home-grown varieties will sit alongside clarets, riojas and burgundies.
Once famed for its high-volume plonk, Argentine wines now win plaudits from connoisseurs. Whats more, the wine industry has a rich heritage. Since the odyssey of a Spanish Priest in the 16th century, Argentina has risen to become the worlds fifth largest wine producer.
Argentine winemaking dates to the arrival of Juan Cidr.n in 1556. Amongst his belongings were vine stalks from his native Spain that he cultivated in the fields of Santiago del Estero. Over the next two centuries winemaking
remained a cottage industry. Above all, vineyards were prized by Catholic clergymen as a source of communion wine.
After this sedate beginning, the industry developed apace in the late 19th century. A second wave of European immigration imported new varieties of grapes and more sophisticated production techniques. The railway line connecting Buenos Aires with graperich Mendoza province (opened in 1885) enhanced producers access to the thirsty capital.
Despite these innovations, Argentine wine failed to satisfy the affluent classes which had tasted imports from France, Italy or Spain. In the 20th century, Argentina became more of a wine-consuming country. At its
zenith, popular consumption reached an estimated 90 litres per capita a year.
The industry ignored international markets and dedicated itself to the tastes of domestic drinkers. The emphasis was decisively on quantity over
quality. Argentine wine was characterised by its earthy, rough and quaffable properties.
This level of demand proved unsustainable. In the eighties the native wine industry verged on the brink of collapse. Domestic consumption halved from its peak. Furthermore, the countrys formerly strained foreign relations and volatile currency were a disincentive for overseas investors. Perhaps as
many as a third of the countrys vineyards were torn from the soil. Sprawling unkempt grape fields and abandoned workers cottages
provide a legacy of this era.
Argentine winemaking has long since recovered from this nadir. In the nineties domestic producers, following their Chilean counterparts, compensated for weakened domestic demand by targeting overseas markets.
Simultaneously, Pernod Ricard, the Lurton brothers and other international
wineries bought vineyards in the country.
They recognised its potential as a source of fruity middle-market wines for drinkers in northern Europe and the US. Mendoza province, in the shadow of the Andes, remains the epicentre of the countrys wine industry. Its harsh arid climate is seemingly ill-suited to winemaking. But the intricate network of irrigation channels (a relic from when Incas ruled the land) ensures that
vineyards are hydrated with meltwater from mountain glaciers. The wine is notable for the altitude at which it is grown. White grapes are often produced in excess of 1500 metres; the highest vineyard is at 2,400 metres. Growing
at height has the advantage of exploiting cooler daytime temperatures. The intensity of ultra-violet rays at this level also causes grapes to develop thicker skins, producing wines with richer tannins and deeper colour.
Mendoza is the source of malbec, Argentinas signature red wine. The malbec grape originates from south-west France, featuring in wines from the Cahors region. The grape is reputed to create spicy wines with a rich aroma and exceptionally dark complexion. Although experts consider them a weaker sibling, Argentine white wines are also winning admirers. Torrontes,
a distant relative of Muscat, leads the pack.
To complement these indigenous varieties, Argentina is also home to more ubiquitous chardonnays and cabernet sauvignons. For those still unconvinced, earlier this year Argentinas wine industry won a major coup.
In a tasting sponsored by the influential Wine Advocate magazine, over 100 Argentine malbecs scored more than 90 points out of 100; 13 received an astronomical 96 points or higher. Even the elite producers of France or California would cherish these scores.
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RULE OF LAW: AFGHANISTAN
A Bar against the odds
Though facing tough challenges, the IBA Human Rights Institute has seen
success in Afghanistan, says Toby Marchant
July 30 2008 may prove a momentous date in the history of Afghanistans judicial reform. Or a day of inconsequential legal wrangling. Over 400 awyers braved considerable danger to attend the inaugural General Assembly of the Independent Afghan Bar Association (IABA). The event is the highlight of the IBA Human Rights Institutes (IBAHRI) five-year engagement in Afghanistan. Due to its culture, history and geography, the challenges of resurrecting the rule of law in Afghanistan are incomparable with anything the organisation has faced in its short history.
Afghanistans complexity has made this a unique assignment for the IBAHRI. The mountainous landscape, primitive infrastructure and ambiguously drawn borders, which characterise Afghanistan, have produced a profoundly decentralized society. Popular affiliations are more likely to be
defined by tribal loyalties or Islamic convictions than identification with the Afghan state. These factors have stymied the emergence of a unitary system of justice. Successive rulers, since British imperialists in the 19th century, have been unable to assert their authority far beyond Kabul or Kandahar; let alone across the whole of Afghanistan.
To exacerbate the IBAHRIs challenge, to varying degrees Afghanistan has remained in a state of war since the Soviet invasion in 1979. The turmoil that raged throughout the Afghan civil war and Taliban rule ensured that, with Afghanistan, the IBAHRI has been dealing with a collapsed state.
The mission
The IBAHRIs mission in Afghanistan has been to establish an independent sustainable Bar Association. It was felt this would help regulate the countrys disparate legal profession.
A further aim of the project is to enhance the fairness of the justice system. Human rights organisations have expressed concern about the absence of legal rights for the accused in Afghanistan. Under the Taliban the concept of free legal representation for defendants was anathema.
In Afghanistan the work of the IBAHRI has been overseen by Phillip Tahmindjis, a prominent Australian lawyer who has worked extensively on human rights and anti-discrimination law. Describing his first impressions of the Afghan legal system, he remarks: It is very disparate because of the
countrys history; there are remnants of civil law, aspects of Russian law and a lot of alternative dispute resolution.
Tahmindjis is referring to the prevalence of informal tribunals comprising of community elders to resolve local disputes. The legal system became so endemically corrupt that most people wanted to avoid it as much as possible, he notes.
The challenges
The project entailed obvious practical challenges for the IBAHRI. Since removing the Taliban, Nato forces have struggled to supplant anarchy
with order. Afghanistan remains a conflict zone.
Fearing for the safety of their personnel on the ground, the IBAHRI has restricted its operations to Kabul. To expand the scope of the mission,
the organisation has drawn on non-government organisations (NGOs) working in the provinces to spread awareness of their activities.
Tahmindjis candidly admits: We have had a major challenge with the language and getting ourselves understood. Each member of our team in Kabul started to learn Dari but when you are dealing with legal concepts
you need more than a conversational ability. The IBAHRI has relied on interpreters to convey their message to lawyers and the Afghan government. Even so, there are some words that dont translate easily into other languages, says Tahmindjis, for instance, the word lawyer. In Dari this
implies someone who acts more as a go-between or mediator.
So disparate was the system that just identifying who the legitimate lawyers
were, let alone their level of training, was a challenge, Tahmindjis recalls. As the profession had remained largely unregulated, there was no directory of lawyers to refer to.
Furthermore, during the Taliban era Afghanis fled by the thousand to neighbouring countries, especially Pakistan. As they returned after the allied invasion, many claimed to be qualified lawyers, having studied at overseas universities.
It was clear to the IBAHRI that many of these degrees were forged.
Tahmindjis characterises the IBAHRIs work as winning the hearts and minds of the Afghan government and lawyers.
He was fortunate that certain crucial stakeholders, notably the Ministry for Justice, were quick to appreciate merits of the project. The IABA became a legislative priority for President Karzais administration.
Naturally, he encountered scepticism: There were lawyers who were convinced that a bar association was just another western idea that Afghanistan really didnt need. To convince the doubters, it was vital to liaise with the countrys lawyers; to inform them about the purpose
of bar associations and address their concerns. In particular we emphasised that Islamic countries such as Malaysia, Egypt and Iran all have Bar associations, notes Tahmindjis.
The breakthrough came two years ago. A seminar was held in Kabul for Afghan lawyers, government officials and NGOs working in related fields. Following a series of lectures, the delegates were divided into eight working
groups. Among other legal issues, these groups discussed the ethics of the profession, human rights and membership criteria for a Bar association. Their findings were reported to the plenary. A position paper was later compiled, which conveyed the consensus that emerged from the seminar.
According to Tahmindjis, The seminar was very successful because it was among the first times that Afghans had been asked what they wanted; rather than an overseas organization telling them what was good for them.
Surely it would be impossible to reconcile the values of the IBA with a country as patriarchal and unreformed as Afghanistan. Seemingly not. I was pleasantly surprised that lawyers were so firmly in favour of setting an ethical code
President Karzai signed the Independent Afghan Bar Association into existence in December 2007 for the profession and disciplining those who breach it, says Tahmindjis. Also, they strongly supported a system of regulated entry into the profession and equality for women.
Breakthrough and assembly
In 2007 the Loya Jirga and Mascherano Jirga the lower and upper houses of the Afghan parliament passed the legislation required to bring the IABA into existence.
That was quite a job, Tahmindjis reflects. With so much new legislation on the books we had to push the bar association to the top of the heap. It received the approval of President Karzai in December. That only seven laws were established in 2007 is a measure of the importance politicians have attached to the project.
The way was then clear for the Afghan legal community to hold a General Assembly to elect a President and Executive Council for the IABA. The
United Nations Office on Drugs and Crime volunteered the $180,000 needed to cover expenses such as venue hire, printing costs and accommodation.
This event was staged at the Intercontinental Hotel Ballroom in Kabul over four successive days at the end of July. Over 400 lawyers attended, 150 of whom had traveled in from the provinces. For this latter group, their journeys to Kabul were made at considerable risk. Some of the attendees who were bussed in left their registration cards at home, fearing the consequences if they were identified as lawyers at a Taliban road block, explains Tahmindjis.
At its outset, the general assembly passed bylaws to govern the ethics, discipline and entry requirements for the IABA. Especially noteworthy are the clauses that guarantee a minimum level of representation for female
lawyers on the Executive Council and ensure that at least one of the (two) vice presidents is female. The code of conduct for the profession remains to be finalised.
The climax of the assembly was the election of the 15-strong Executive Council on the final day. This took place in the presence of the Second Vice
President of Afghanistan, the Minister for Justice and his two deputies and the Chief Justice of Afghanistan.
The president of the IBA, Fernando Pompo, Phillip Tahmindjis and Alex Wilks, the IBAs legal specialist for Afghanistan, also attended. Voting procedures were monitored by local and international electoral experts.
The results were announced shortly before dawn on July 30.
Expectations
The establishment of the IABA does not signal the end of the IBAs work in Afghanistan. Quite the opposite. Now perhaps our most difficult task is
beginning. That is physically setting up the Bar and making it self-sustaining, Tahmindjis explains. Our goal is to eliminate the need for the projects support team in London.
Its the stage we must not fail. Until now, if wed failed people would say oh well, it was a great try; you worked hard but sadly didnt quite make it. Now that we have got there, there are great expectations of the Bar. A lot is riding on this. If it fails, it may set the process of establishing the rule of law back by many years.
However, the fate of Afghanistans fledgling Bar is inexorably linked to the outcome of the conflict raging between Nato forces and the resurgent Taliban. Were the unthinkable to happen, the progress the IBA has achieved in its five-year Afghan mission could soon be shattered.
Background to Afghanistan
Establishing the rule of law in Afghanistan has been a priority for the
international community since the US-led overthrow of the Taliban in
October 2001. The Bonn agreement the transitional framework
signed in December 2001 to prepare the country for self-governance
decreed that judicial power was vested in an independent Supreme
Court of Afghanistan.
This agreement prescribed the creation of a Judicial Commission
to rebuild the justice system in accordance with Islamic law, international
standards and Afghan legal traditions. Infighting caused the acrimonious closure of the first commission in May 2002. After the establishment of a second commission in November that year the reform process gained momentum. The commission cited improving the structure of judicial institutions as a vital component of its mission.
Early in 2003, the commission issued a report outlining the four areas of work it considered crucial to fulfilling its mission. The last of these was the Structure of Judicial Institutions. This section outlined projects to establish a Bar association and strengthen the provision of legal aid.
Around the same time, Christian .hlund, executive director of the Stockholm-based International Legal Aid Consortium (ILAC), undertook
a scoping mission to Kabul. His task was to uncover what opportunities
existed for the ILACs member organisations to engage in the rebuilding of the countrys judicial system. He quickly realised the potential of the IBA to assist the Judicial Commission with its objective of creating a Bar association. These are the origins of the IBAHRIs mission to Afghanistan.
The close links that the ILAC has with Swedens government helped ensure that the IBAs work in Afghanistan has been generously funded by the Swedish foreign ministry.
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continue on next section
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* IBA Buenos Aires Conference - Section 2-2 of 4
continue from section 2-1
POLL: US TREASURY BANK BAILOUT
What do you think of the US bailout?
This afternoon the Securities Law Section will discuss takeovers of financial
institutions. Here, lawyers argue that the US Treasurys own bailout of banks is unfortunate but necessary to stabilise the global economy. By Kyle Siskey
I think its unfortunate but it has to happen, says one lawyer about US Treasury Secretary Henry Paulsons Emergency Economic Stabilization Act,
which will invest $700 billion in risky mortgages that caused the downfall of some of the biggest investment banks. Its called the Troubled Asset Relief Programme by some, or Tarp, which seems rather appropriate. Its a dark,
waterproof cover that you can throw over things that you want to forget.
Most lawyers felt the same way, with 55% agreeing the bailout was unfortunate but necessary. Of the remainder, 28% say it is unnecessary, 9% agree with it and 8% think it is a good idea, just too late. While this negative response doesnt bode well for the bailout, most of those polled could not
come up with any better alternative for fixing the American market.
All the US lawyers polled understood the significance of a plan that uses taxpayers money for uncertain investments. This is the most important decision the government will have to make this decade and maybe this century, says one lawyer. If they do it correctly it will mean a bounce back
of the economy, but if they do it incorrectly theyll increase the debt and reduce US credibility on a global scale. It really is a monumental decision.
Unfortunate but necessary
The sale of Bear Stearns to JP Morgan in March began a process that included the failure or adjustment in the status of every major US investment bank. Lehman Brothers was the next to go when it filed for bankruptcy, followed by Merrill Lynch being sold to Bank of America and both
Goldman Sachs and Morgan Stanley becoming holding
banks overnight.
Among those events were the government subsidization of insurance giant AIG and most recently the sale of deposit banks Washington Mutual and Wachovia to JP Morgan and Citigroup respectively. With the collapse of major financial institutions beginning to surround him, Paulson was forced
to act with greater drama than he had before. Hes moved in little steps each time, which all proved to be wrong, says one lawyer. There has been a long track of failure and they are finally getting to the source of the problem. That source is the housing mortgage loans that institutions purchased and are defaulting across the country. As billions of dollars in payments failed to come in, the banks were forced to find buyers or go under.
The last few months have been a game of Whack-a-Mole for the federal government, says one lawyer. Now they are throwing a lot of money into the system to try and stop the problem. Hopefully that works.
All of these events led to the Treasury Secretarys plan to invest $700 billion of state funds into the banks in order to stabilise the investment industry and raise credit ratings. The plan also comes with strong oversight measures. After an initial $250 billion is given to the Treasury Department for investment, additional $100 billion and $300 billion allotments must be approved by Congress.
I still think it is a good move for the US overall, says one lawyer who agrees with the plan. If it means helping out a few individual banks than so be it, but we need to look at what is best for America.
Those who disagree
Most dissenters in the legal community question the amount of risk Paulson is putting upon the American taxpayer. The phrase Main Street is bailing out Wall Street is tossed around a lot while lawyers question the lack of specific investment strategy.
If the government wanted to do this right theyd look at the institutions that are never going to fail, and help them, says one lawyer. The groups that have failing stock will fail with or without the governments help, and leave the taxpayer with the bill. But if we find out who can support the economy with some help, then the programme will make sense, because the taxpayer may get their money back.
On a simpler level the bailout may give investors a false sense of security. It may suggest that Paulson will continue to help banks take chances with public funds.
People are only prudent when they know the risks they are taking, says one partner. If they think the government will help them every time, theyll start to take bigger risks. There needs to be a risk adjustment from the top down, from the highest bank lender to everyone holding the mortgages.
The European implications
European banks face the same potential failures if government doesnt intervene. Already HBOS sought a buyer in Lloyds and Bradford & Bingley was bailed out by the UK government as the bank failure sweeps Europe. Fortis and WestLB also received government help.
While 50% of European lawyers thought the plan was unfortunate but necessary, most did not think a similar plan would be implemented in Europe. UK lawyers expect the government to remain hands off for political reasons, while EU lawyers think a lack of cooperation between European
nations and banks will ultimately prevent any sophisticated bailout plan.
Its a tough question about the extent to which the state needs to intervene, said one lawyer. If we were to face the issue in the EU, no member state could mount a rescue, and the European Central Bank doesnt have the
power.
Good idea, bad timing - 8%
Good idea - 9%
Bad idea - 28%
Bad idea but necessary now - 55%
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CORPORATE AND M&A LAW
Do Argentine big Macs have enough beef?
Allen Miller questions the benefit of Mac clauses
Vendor due diligence is becoming increasingly common in Latin
American M&A, but a lack of professional insurance in the region means that reliance letters are even more important. At an overcrowded session yesterday morning, Carlos Urrutia of Brigard & Urrutia of Colombia
explained the problem.
Professional liability insurance is not widely held in Latin America, he said. And if a firm does have insurance, then it is for a fraction of the value of European levels. Law firms therefore have to be very careful. The reliance letters that they draft must cover liability caps and have disclaimers
or the law firm could fold.
Vendor due diligence is conducted by sellers who want to make it easy to generate interest in an auction and do not want multiple bidders conducting their own diligence at the same time. It is extremely beneficial to the
investment banker running the auction too as it ensures that the first round of bids is based on useful information and therefore should reflect a fair market value. To some extent, it also avoids price erosion and bidders dropping
out in the second round, as they have already had a guided tour of the data room.
Earlier in the session, Jacques Buhart from Herbert Smiths Paris office explained how a typical European process works. First, the lawyers conducting the vendor due diligence write a release letter to all the bidders
to explain that they have no contractual relationship with them. Even in this initial letter, there are many disclaimers to prevent them being sued over misstatement, misleading statements and the like. The bidders are then shortlisted and eventually an acquirer is selected.
This is when the law firm writes the reliance letter to confirm the report to the acquirer, he said. It indicates that there has been no independent review of the vendor due diligence, it says that there may be more information that is not covered in the report and then it sets the liability cap.
After joking that vendor due diligence is one of the only uncivilised things that the UK has exported, Charles Martin of Macfarlanes in London agreed with Buhart that European liability caps can be as much as 20 million
to 25 million ($35 million to $43 million).
This is the essence of the problem. Large European firms can afford to include large caps in their reliance letters because they can afford to insure against such cost.
This is not widespread practice in Latin America, but as co-chair Jaime Carey of Carey y C.a halfjokingly warned: If there is insurance, there is more incentive to sue!
The solution therefore is to ensure that Latin American lawyers draft affordable liability caps into their reliance letters. Clarity of terminology is all important to ensure that the letter is enforceable. That said, things are made difficult in many jurisdictions in the region where gross negligence can be a criminal charge that overrides all liability caps. Insurance may be an inevitable consequence if vendor due diligence continues to grow in the region.
Later in the session, the panels discussion turned to material adverse change (Mac) clauses. These are added to contracts to protect the buyer in the weeks between agreeing to purchase and closing a transaction. Essentially, they are designed to ensure that buyers are not forced to purchase at the agreed price if a material adverse change (that typically affects the value of the target)
occurs. Mac clauses can be as specific or general as you like, although the latter would lead to increased enforceability issues.
Normal carve-outs to a Mac clause include general economic issues, terrorism, changes in the law and other such provisions.
After describing Mac clauses to the audience, Allen Miller of Chadbourne & Parke in New York then set a hypothetical scenario for the other panellists
to comment on. He asked them if they thought it would be
enforceable in their jurisdictions.
The majority of Latin American jurisdictions do not have case law on this yet, said Jose Luiz Homem de Mello of Pinheiro Neto Advogado in S.o
Paulo. But if the Mac is clearly defined, then I think it would be enforceable.
Urrutia from Bogot. agreed: There havent been many, if any, court decisions in the region. But if the clause is clear enough, the seller could walk away. However, the issue of good faith and fair dealing may arise.
The UK perspective was less enthusiastic.
Martin had strong doubts that the Mac clause could be relied upon. It was at this point that Miller revealed that the hypothetical situation was actually IBP v Tyson Foods. In this case, the Delaware Court of Chancery found that
the Mac clause could not be enforced.
This prompted Miller to declare: There is no beef in the big Mac. That may be the case in the northern hemisphere, but in Latin America, as with the abundance of steak, the opinion of lawyers is more positive.
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Water Law
Ex-cop cautions lawyers
Lawyers must not underestimate their role in major crisis responses, and
should familiarise themselves with civil contingency plans sooner rather than later, according to an expert in civil emergencies management.
Speaking at the Water Law session on Water and Terrorism former policeman Tom Pine, now an adviser to the EU on justice and home affairs, told those present that when the day comes you need to be able to hit the ground running. During the crisis is not the time to start reading the legislation.
Pine insisted that lawyers have a unique role to play in preparing businesses for future civil emergencies, whether as a result of terrorist acts or natural disasters.
This role first comes into play when companies are devising contingency plans; a situation where lawyers are likely to be the only people able to act as brokers between competitors who might not otherwise liaise effectively.
When a crisis does occur, lawyers should already have planned the correct legal action, and be present at every stage to generate ideas and ensure due digilence is carried out.
But it is after an emergency that the work really starts for lawyers. Unless civil and business contingency plans are flawless, companies and governments may face multiple cases relating to collateral costs, recriminations and compensation claims.
Pine also urged lawyers to hold firms accountable for adhering to standards of ethics, human rights and rule of law. Operating during times of crisis, he said, was not an excuse to throw away standards, but to deal with these situations in a time-honoured way; by thinking our way out of them.
To ignore such considerations when placed under pressure was giving the terrorists exactly what they want.
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