Synergy Magazine 54

SYNERGY magazineCorruption preventionA view from GRECO, p. 12

No. 54 · II-2013

Gender equality

Time for a change, p. 20Media LawNew focus, new era, p. 44

Magazine of The European Law Students’ Association

Gender equality and Corruption: "It is time to act!"

2www.eustudiesfair.com

07-08 February 2014Brussels, Belgium

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Law - Business - International relations - EU studies

synergymagazine 3

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ABOUT ELSA

ELSA Members x 38,000

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ELSA National Groups x 42

ELSA International

The European Law Students’ Association, ELSA, is an internatio-nal, independent, non-political and non-profit-making organisati-on comprised and run by and for law students and young lawyers. Founded in 1981 by law students from Austria, Hungary, Poland and West Germany, ELSA is today the world’s largest independent law students’ association.

Synergy Magazine is ELSA's members' magazine, which is prin-ted in 10 000 copies and distributed all over the ELSA Network. The articles are contributions from students, young and experi-enced lawyers as well as academics.

Synergy Magazine

The Association

VISION"A JUST WORLD IN WHICH THERE IS RESPECT

FOR HUMAN DIGNITY AND CULTURAL DIVERSITY"

Synergy Magazine

Editor: Petra Podgoršek

Contact: [email protected]

Visit Synergy Online:

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ELSA’s Members

ELSA’s members are internationally minded individuals who have interest for foreign legal systems and practices. Through our activities such as seminars, conferences, law schools, moot court competitions, legal writing, legal research and the Student Trainee Exchange Programme, our members acquire a broader cultural understanding and legal expertise.

Our Special Status

ELSA has gained a special status with several international institutions. In 2000, ELSA was granted Par-ticipatory Status with the Council of Europe. ELSA has Consultative Status with several United Nations bodies; UN ECOSOC, UNCITRAL, UNESCO & WIPO.

ELSA is present in 42 countries

Albania, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Re-public, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Kazakhstan, Latvia, Lithuania, Luxembourg, Malta, Montenegro, The Netherlands, Norway, Poland, Por-tugal, Republic of Macedonia, Romania, Russian Federation, Serbia, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine and United Kingdom.

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This year is a very special ELSA year, or at least a very unique beginning!

Never in the history of our beloved as-sociation, has it happened that three im-portant things were launched on the same and the very first day in office of many Officers in the Network. On the 1st of August there was the launch of the new Strategic Goals 2018, the second edition of the Human Rights Moot Court Com-petition and a new International Focus

Programme - Media Law.

It was a challenging start, we admit it! Therefore, we feel a huge responsibility, but an even bigger opportunity to implement and

SynErgymagazine4

Editor’s letter

Petra Podgoršek

Deputy Vice President

for Marketing

ELSA International

develop them in the right direction. Having a chance to implement a new project or start with a new chapter, is always challenging , but we believe that with the Network of 38,000 members, we can do it! We will grab the chance and do it together!

The main topics of this edition are Gender Equality and Cor-ruption; these are topics we should always bare in mind when thinking about how and where we can improve the legal world! You can find articles on these issues written from different angles, ranging from historical data to article looking into the future, from statistics to more specific explanations of the topics.

Discover it with us, and make our society better!

Dear ELSA friends,

IE LAW SCHOOLWhat if you could sign through social media?Legal challenges can arise from unusual situations. At IE Law School, we prepare global lawyers with the skills to provide innovative solutions to their clients in an ever-changing world.Unusual situations demand exceptional lawyers.

WWW.IE.EDU/[email protected].: +34 915 689 600IE LAW SCHOOL

DIGITAL SIGNATURE 8.0

Can you imagine...?

UNUSUALHAPPENS

C

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190x130_socialmedia_law.pdf 1 18/07/2013 13:43:24

Contents

Gender equality - time for a change Carlien Scheele, the Council of Europe, p. 20

The corrosive effects of corruptionAmelia Hadfield, Canterbury Christ Church University p. 15

Beyond technical excellenceIsabel Scholes, CMS, p. 9

Editor's Letter 4

The International Board of ELSA 6

The Secretary General of the Council of Europe - Patron of ELSA 8

Beyond technical excellence 9

Corruption

Corruption prevention and the private sector 12

The corrosive effects of corruption 15

Gender equality and Human Rights

Gender equality - time for a change 20

Gender equality- a cross-cutting challenge 23

ELSA Events Calendar 2013/2014 26

International development, gender equality and the role of lawyers 28

Statistical perspective on the gender equality 30

International projects

All around the world: ELSA Moot Court Competition 32

Interview: Mr. Russell Denoon Duncan 34

ELSA Day - Cooperation as a key to success 36

One voice against Online Hate Speech 38

International Focus Programme

Health Law - Evaluation 40

Let me regulate you 42

International Focus Programme 2013-2016: Media Law 44

The ELSA Network

Luxembourg as part of the ELSA Network 46

The first ELSA Traineeship in Asia 48

The 9th ELSA Summer Law School on M&A 50

6

Clemens Hartig – Vice President for Student Trainee Ex-change Programme: “It feels really good to live and work with seven other great different people; also the people in the Network spread this feeling among us and motivate us even more.”

Tino Boche – Vice President for Academic Activities: “I’m happy to have this opportunity to positively influence the legal education of law students from all over Europe.”

Emil Nyquist – Deputy Secretary General: “During the past years ELSA, at times, has been a big frustration to me. Most people know how it can feel when you love something and there just isn't enough hours in a day for it. Therefore, I feel honoured to have been given the opportunity to work full time in the ELSA House making my best effort to contribute to my favourite organisation and the people in it.”

Oda Linneberg Uggen – Vice President for Moot Court Competitions: “I feel really privileged to be able to work one year full time with something I enjoy so much. I really believe in what we are working for, and I love getting to meet so many great people along the way.”

Anneloes Dijkstra – President: “Together we are creating the future of Europe, full of opportunity and understanding. It is simply inspiring to be a part of this.”

On our last day of transition (the 31st of July), most of the pre-vious board had already left the ELSA House, and almost all of us had the opportunity to move into our own separate rooms. However, we felt so sad to leave that one room, in which we had stayed together for a whole month, that we decided to stay together for this last special night as well. A connection had been made, between eight very different people, from seven different countries. A connection that would develop, change and hopefully last for the upcoming twelve exciting months!

In most of the introductory articles of the past years, the board members were introduced by a small paragraph about themselves. This year we would like to do it a bit different; our personal introductions can be found on our spectacular new website (www.elsa.org), so we encourage you to find out more about our ambitions there. As for this article, we think it would be nice to write something about how we feel as the new ELSA International, what our plans are for the upcoming year and how we intend to shape the future of our wonderful association.

Let us start with a short description of our emotions.

Ana Roce - Vice President for Seminars & Conferences: “I feel like it is a huge responsibility, but I am excited because of the projects I get to work on this year; everything is possible with the support of my board!”

Rebecca Yourstone – Deputy Treasurer: “I feel honoured and excited to get this opportunity and trust to work full-time with and for this amazing Network. I can’t wait to see what we will accomplish together.”

ELSA International 2013/2014

The International Board of ELSA

“Let's work on this together!"The most important values for us as a team are professionalism, trust, dedication and honesty. It is about sup-

porting each other and supporting all the Officers in the Network to work in the best way possible for ELSA.

Together as a Network, we work for this association, usually for several years of our lives, to real-ly contribute to legal education.

We are willing to understand each other, to be open to our different cultural traditions and to create endless opportunity for self-development of our fellow law students.“

synergymagazine 7


Petra Podgoršek - Deputy Vice President for Marketing: “From the very first months in ELSA, I felt that the core of this association are the people. Today, I am even more sure about this. It feels amazing to live and work with my new board members and I am sure that together with the Network, we will create an amazing ELSA Year!”

As you can see, we feel very different, but we feel like we are all together, and that is what ELSA is all about for us. We are all different, but we are all together. Together as a Network, we work for this association, usually for several years of our lives, to really contribute to legal education. We are willing to understand each other, to be open to our different cultural tra-ditions and to create endless opportunity for self-development of our fellow law students.The most important values for us as a team are professiona-lism, trust, dedication and honesty. It is about supporting each other and supporting all the Officers in the Network to work in the best way possible for ELSA. Through diversifying legal education and creating a platform for opportunity and cultu-ral exchange, we inspire our members to be more internatio-nally minded. This way our students can personally develop themselves while creating a vision for the future.

The things we, as ELSA International 2013/2014, want to fo-cus on during the upcoming year are divided into four levels of priorities. Our Top Priorities for the year 2013/2014: Com-

munication within our Network, Financial Stability of ELSA International and the Development of our Academic Level. We will aim for this by creating and further developing new communication tools that create a closer connection between the International Board and the Local and National Boards. Furthermore we will focus on diversifying and expanding our sources of income and continuously improving the academic quality of events organised on all levels. Not only do we want to get a better overview of all the activities that are being or-ganised, we want to support our Network in properly struc-turing and stabilizing these projects, in order for them to be (and stay) successful. Besides our Top Priorities, we have for-mulated Priorities, Special Attention Topics and Area Goals.

Our Priorities consist of developing the Human Resources in ELSA, creating Online Solutions for specific needs and im-proving the common understanding of the Profile of ELSA. Our Special Attention Topics are based on long-term imple-mentation projects, such as our new International Focus Pro-gramme Topic: Media Law – which will last for three years, and our new Strategic Plan – which will last for the upcoming five years. Furthermore, we have written Area Goals, in which we have written specific plans and priorities within each area of ELSA.

All of these documents are published on www.elsa.org.

ELSA International 2013/2014 Oda Linneberg Uggen, Petra Podgoršek, Rebecca Yourstone, Ana Roce, Anneloes Dijkstra

Emil Nyquist, Tino Boche, Clemens Hartig

8

Human Rights. The final round held in Strasbourg featuring 16 teams from 13 countries saw participants showcasing their talents; demonstrating excellent knowledge of the Human Rights system, an outstanding command of English and ex-ceptional public speaking skills.

The European Law Students Association can use this com-petition as further stimulus in helping its members to over-come all challenges they are faced with in the professional are-na and to provide them with the right tools to compete on an international level. As Patron, I wish ELSA continued success and fulfillment and look forward to close co-operation with the Council of Europe in the years to come.

The European Law Students As-sociation has proved itself to be a trustworthy and highly co-operative partner of the Council of Europe for the last seven years. By upholding the values of human rights, democracy and the rule of law, you are helping to de-

fend the founding principles of the Council of Europe itself. Together, we are working to make Europe a safer place, where the fundamental freedoms of all citizens are respected. There-fore, it was with great pride that I accepted the invitation to become the Patron of such a commendable association. I am delighted to be able to play a part in promoting our common standards in an ever closer partnership.

I was also greatly honoured to be invited to attend the award ceremony for the first Human Rights Moot Court Competition in English. Starting out with 400 law students from 84 different universities in 31 countries all over Europe, this event demonstrated both the extraordinary diversity of ELSA and the extremely high standards it sets itself. This is a very significant project for the Council of Europe because it provides law students with highly valuable practical experi-ence in working with the European Convention on Human Rights and learning the procedures of the European Court of

Patron of ELSA

Thorbjørn Jagland

Secretary General

Council of Europe

Patron of ELSA

The Secretary General of the Council of Europe - Patron of ELSA

The cooperation between ELSA and the Council of EuropeThorbjørn Jagland is the former Prime Minister and former Foreign Minister of Norway and now the 13th Secretary General of

the Council of Europe. ELSA is very proud that, starting in 2013, Mr. Jagland is supporting our association as Patron.

ELSA is at the vanguard in promoting the Council of Europe's legal and human

rights activities.“

synergymagazine 9

Beyond technical exellence

Beyond technical excellence

Technical mastery is essential – but is a minimum requirement for career successIf legal knowledge alone is not enough, what other skills and attributes help make the difference?

Isabel Scholes

Director of Communications

CMS

For lawyers as for many other pro-fessionals today, technical mastery in your chosen field is essential – but is a minimum requirement for career success. Whether you’re an external legal adviser or part of an in-house team, your clients will

always expect you to know the law, manage legal risks and make sure they do not fall on the wrong side of any techni-calities.

But if legal knowledge alone is not enough to make any lawyer, firm or legal team stand out in a competitive professi-onal marketplace, what other skills and attributes help make the difference?

Luckily, for several years now clients of business law firms have made no secret of what they want from their legal advisers. Expertise in specific areas is the essential starting point, but the ability to see beyond the technical matter at hand and connect with the ultimate use of legal advice is key. In short, the lawyers that get ahead today and equip them-selves for success in the future have what one major interna-tional survey of law firm clients calls “business savvy”. They have a commercial awareness and business understanding

The lawyers that get ahead today, have what one major international survey of law

firm clients calls "business savvy".“that complements their technical skills and boosts their appeal as trusted advisers.

One high profile general counsel, who also has experience as a partner in a major international law firm, calls for a ge-nuine partnership approach – both in the relationships bet-ween in-house lawyers and the business they serve and in the ways external lawyers add value to their clients. In-house lawy-ers have become increasingly central to the business decision-making process, extending their field of influence and contri-bution beyond the traditional legal remit. And external firms that truly make the effort to find innovative ways of serving clients, develop lawyers who understand business challenges and offer clear commercial advice in the client’s language and business context are leading the way.

10

major clients including BP and Eni, and we have been active in the Middle East for many years. So the logic for opening an office in Dubai was clear, and wholly focused on providing a base from which to serve existing clients with interests in the region as well as those wishing to expand into established, new and emerging markets. Energy partner Matthew Culver, head of CMS Dubai, explains: “Most of our lawyers have been seconded to major energy companies and we feel our in-depth sector knowledge really sets us apart from our rivals. Our experience with BP and Eni in Iraq gives us a great basis of knowledge with which to advise other clients looking to do business in the region.”

Forward thinking

So a key aspect of being commercially aware means that we look to position ourselves to offer a world vision that opens up new possibilities for our clients. But positioning is not all about the location of a physical office. Our approach to the long-awaited arrival of a Unified Patent Court (UPC) for European patents is a case in point. The UPC means that patent holders only need to litigate in one UPC court to get an injunction that applies across all European states, rather than arguing the case in each jurisdiction where infringements have occurred. CMS prepared for this major change in the legal landscape affecting life sciences companies by setting up a UPC task force to anticipate the change, advising clients through a new cross-border patents team on the implications for their businesses. “This is a huge event for the life sciences sector, as patent enforcement is crucial to companies seeking to protect their pharmaceutical innovations,” explains CMS Utrecht Intellectual Property partner Willem Hoorneman. “Irrespective of which CMS office a client comes to in the first instance, we can provide an immediate cross-border as-sessment of how to run the case.”

While no-one can predict the future with total certainty, being proactive and commercially aware is a tried-and-tes-ted way of creating opportunities for CMS and our clients.

Business savvy

At CMS, our professional lawyers and tax advisers recog-nise commercial awareness and business understanding as a proven route to better client relationships, more interes-ting and challenging work, and therefore more fulfilling careers. Client research shows that being “business savvy” is one of the key reasons why clients trust us with complex transactional, litigation and advisory work. But how does an international firm develop commercial awareness among its lawyers?

It starts with the way we see CMS adding value, and this means taking a business outlook that is wholly focused on clients and the results we can achieve for them. We call this approach ‘Your World First’, and it requires our people to engage with clients on a deep level, basing our advice on an understanding of the challenges and opportunities facing the client’s business and industry sector today and in the future. Our lawyers gain experience of working with large and smaller businesses at every stage of development – both as external advisers and on secondment to in-house legal departments. We cooperate in local teams and cross-border industry, sector and practice area groups - sharing knowledge and developing insights into the forces shaping business and the ways we can make a difference for our clients.

Being commercially aware helps us make decisions about our business that make sense for our clients. Last year’s launch of CMS Dubai is a good example. As a firm we are re-cognised as leading advisers to the global energy sector, serving

A key aspect of being com-mercially aware means that we look to position our-

selves to offer a world vision that opens up new possibilities for our clients.“


Can innovative thinking and commercial awareness be taught and developed? This is a key question for all law-

yers and especially young lawyers wish-ing to build a fulfilling and interesting career. At CMS we have clearly seen the benefits of organising structured training programmes in specialist technical areas and in business skills, team working and knowledge sharing.

“

synergymagazine 11


For example, our specialist Infrastructure & Projects group is helping alternative lenders to step into the corporate financing gap that emerged following the banking crisis. The CMS team is working with new lenders including insurers, pension funds and specialist investment funds on deals that are providing vital funding for corporates and other borrowers.

One recent headline deal saw the group advise Aviva Inves-tors, the investment arm of major insurance company Avi-va plc, on its purchase of a substantial proportion of Bank of Ireland’s infrastructure loan portfolio. The bank was re-quired to make the sale to steady its balance sheet and improve its core Tier 1 capital ratio – a situation facing numerous other banks in jurisdictions around the world, and CMS has advised on other loan portfolio acquisitions in recent months.

Specialist legal expertise and deep industry knowledge are a winning combination for CMS groups. “Clients come to us because they know we can handle complex, highly structu-red deals, but also because we have the expertise in the speci-

fic sectors they are investing in, notably infrastructure, energy and real estate,” says CMS London Finance partner Nancy Eller. “Alternative financing requires innovative thinking and high partner visibility and we feel this sets us apart.”

Developing skills

Can innovative thinking and commercial awareness be taught and developed? This is a key question for all lawyers and especially young lawyers wishing to build a fulfilling and interesting career. At CMS we have clearly seen the benefits of organising structured training programmes in specialist tech-nical areas and in business skills, team working and knowledge sharing. Continued growth and client demand shows that our lawyers are rising to the challenge of making a real difference in the business world by delivering results for our clients. We believe that adding commercial awareness to technical excel-lence is an essential characteristic for every CMS lawyer. Our people have the attitude and ability to keep building the skills that ensure they add value to our clients and to CMS.

12

By way of brief background, GRECO is a peer review mechanism and its member states take responsibility as reviewers and as the subject of a review. Evaluations are conducted in “rounds” which focus on specific issues in the fight against corruption with reference to Council of Europe legal instruments, including the Twenty Gui-ding Principles for the Fight against Corruption.3 In 2012, GRECO started its latest and fourth round examining corruption prevention measures in each member state with respect to parliamentarians, jud-ges and prosecutors. Each of these groups works within key national institutions whose effectiveness helps determine whether the seeds of corruption flourish in a given country or not.

Corruption has long been a key issue for the Council of Euro-pe but, in January 2013, the Secretary General, Thorbjørn Jagland, addressed the Parliamentary Assembly of the Council of Europe (PACE) and said “corruption is today's biggest threat to democracy and it undermines citizens' trust in the rule of law.” He said that the fight against corruption must be a priority of the Organisation and so sent a strong message to all member states that now is not the time for them to take their eye off the ball. This is very important and it is also true to say that the fight is not theirs alone.

3 For a list of relevant legal instruments please visit the GRECO website at http://www.coe.int/t/dghl/monitoring/greco/documents/instruments_en.asp

GRECO1 is the anti-corruption monito-ring body of the Council of Europe. It was founded in 1999 by 17 of its member

states; it is open to non-member states and now boasts 49 members - all European Union and Council of Europe countries including the Russian Federation and the former Eastern bloc states, the Bal-kan nations, Turkey, the Caucasus countries of Armenia, Azerbaijan and Georgia as well as the non-Council of Europe member States of Belarus and the USA.

While GRECO is an inter-governmental body set up to monitor state responses to corruption, the private sector is taking a keener interest in GRECO’s work as there is increasing international reco-gnition that it shares the responsibility for the challenges of elimina-ting corruption.2 Corruption is now openly condemned in Europe on the basis of the harm that it causes. It is no longer viewed purely as a “victimless crime.” Corruption is understood to undermine de-mocratic accountability and the rule of law, to unfairly limit access to public resources and services, to severely distort legitimate institu-tional aims (public and private), to drain away national wealth and to subvert lawful economic activity.

1 All views expressed are personal2 See also UN Global Impact Principle 10 (www.unglobalcompact.org)

Corruption prevention

Wolfgang Rau

Executive Secretary

of GRECO

Council of Europe

Corruption prevention and the private sector

A view from GRECOGRECO is the Council of Europe's Group of States against Corruption, founded in 1999 by 17 of its member states. It now

boasts 49 members.

Corruption is today's big-gest threat to democracy and it undermines citizens'

trust in the rule of law.-Torbjørn Jagland

Secretary General of the Council of Europe,

addressing the PACE in January 2013 “

synergymagazine 13

corruption can have an equally significant detrimental impact on so-ciety at large (for instance, where employees working for companies in the construction, pharmaceutical or food industries are bribed to buy poor quality or faulty supplies).

International legal instruments also require national govern-ments to ensure that “legal persons” (i.e. companies) can be held criminally liable in cases of corruption (see for example article 18 of the Criminal Law Convention on Corruption). Until this point, few jurisdictions had any corporate liability of this kind and - even for those which did - including such a requirement sensitised governments and practitioners to the need to make effective use of their domestic mechanisms. The fight against corruption would be ineffective if criminal liability - and thus prosecution and conviction for bribery - applied only to an individual manager or employee of a company as a natural person. This would leave the business en-tity untouched even where the conduct was part of the company’s overall policy to obtain or retain contracts, enter new markets, or to achieve sales objectives by “any and all possible means,” including corruption. Moreover, in a globalised world of complicated business structures and decision-making processes, it can be difficult if not impossible to identify a specific employee or representative as perso-nally responsible for the offence. Interestingly, article 18 paragraph 2 of the Criminal Law Convention mentioned above requires that a corporation can be held liable in the absence of evidence to show that the company had in place appropriate supervision or control mechanisms to prevent corruption. Such strict liability offences make it easier to prosecute corporations for bribery.

The longer the economic stagnation or even recession, the grea-ter the competition for fewer resources, the higher the potential of resorting to corrupt practices to access those resources and the greater the risk of further damage to Europe’s democratic values, institutions and stability. This risk is not solely a problem for public administration and for citizens’ trust in government but is also a matter for the private sector; responsible businesses whose profitability depends on a healthy economy supported by, amongst other things, impartial judicial decision-making, fair and transparent administration of licences, taxes, land and customs and which recog-nise that their activities impact on citizens’ lives and welfare.

The impact of anti-corruption legal instruments on the private sector

In the 1990s, corruption-related expenditures were often tax-deductible for businesses that paid bribes and the United States of America was one of the very few countries which prohibited, through its Foreign Corrupt Practices Act (FCPA) of 1977, inter-national bribery committed by domestic businesses (or foreign busi-nesses and persons acting domestically). As a result, businesses in the US and the countries in which they operated felt that they were at a disadvantage compared to other major exporting countries that did not have such a prohibition. This led to the OECD convention of 19974 which criminalised the bribery of foreign public officials in the context of international business transactions (although interes-tingly, a recommendation to prohibit the tax-deductibility of bribes paid to foreign officials was not made until 2009).5

Traditionally, many considered bribery in the private sector to be less important than bribery in the public sector in protecting the interests of society. It was not uncommon for countries to avoid criminalising it altogether, to address it through laws governing un-fair competition, or to impose much lighter penalties. Subsequent international anti-corruption instruments have prompted countries in Europe and around the world to criminalise bribery and corrupti-on-related offences in a way that places the private sector on an equal footing with the public sector. In particular, since 1999 the Council of Europe’s Criminal Law Convention on Corruption (ETS 173) requires the criminalisation of bribery involving public officials and anyone working for a business entity.6 Including private sector bri-bery in international instruments acknowledges that private sector 4 OECD Convention on Combating Bribery of Foreign Public Officials in Interna-tional Business Transactions, 1997. 5 OECD Recommendation of the Council on Tax Measures for Further Com-bating Bribery of Foreign Public Officials in International Business Transactions,

2009. 6 See articles 7 and 8 of the Criminal Law Convention on Corruption, 1999 http://conventions.coe.int/Treaty/EN/Treaties/Html/173.htm

The USA was one of the very few countries which prohibited, through its For-

eign Corrupt Practices Act (FCPA) of 1977, international bribery committed by domestic businesses (or foreign busi-nesses and persons acting domestically).“


14

It is reasonable to assume that the size of a company will influ-ence the scope and ambition of its internal anti-corruption po-licies and determine whether or not a compliance office or team is specifically appointed to implement and supervise them. The development of often highly complex “compliance” management systems and compliance officers - employed by the company but often asked to play both a supervisory and an enforcement role - is a particularly interesting feature of corruption prevention in busi-ness. In light of the general operating environment and the specific risks companies face (for instance doing business in countries reput-edly affected by corruption), it could also be helpful to determine how disciplined a company is with respect to prevention. In other cases, particularly for small and medium sized companies or where the business activity is subject to additional legal requirements (i.e. anti-money laundering related11), corruption prevention may well be strongly interlinked with other issues in internal policies.

While private sector corruption is nothing new, corruption pre-vention in business is a more recent and growing field of activity and concern. As relative newcomers, those working in anti-corrup-tion in the private sector may well wish to look to the work of GRE-CO and tap into the expertise that its multi-disciplinary approach has built up over many years.

Research & essay challenge:Identify three examples of how the private sector is responding to anti-corruption laws (by company, sector or industry). Contrast and compare with regard to the stated aims of the action, the level of commitment demonstrated and any evidence as to effectiveness. Identify a measure/action/policy that you think could or should be taken by the private sec-tor to tackle corruption and whether or how this could be supported by the international community.

11 This is specific to the financial sector, typically those entities involved in banking, insurance, securities, payment and money transfer services, traders in precious metals, stones and other items, legal and accounting/auditing services, gambling businesses etc.

Legal instruments developed by the Council of Europe and other international bodies have increased the financial and legal con-sequences (i.e. costs) for businesses involved in corruption. In particular, articles 3 and 4 of the Council of Europe Civil Law Con-vention on Corruption (ETS 174)7 of 1999 require that countries ensure compensation is available to persons - legal or natural - who have suffered damage as a result of another’s corrupt acts (for in-stance a contracting partner, a competitor). Moreover, article 8 of the convention foresees that contracts affected by corruption should be rendered null and void.

Private sector response

In recent years, an increasing number of businesses - especially larger ones - have introduced internal anti-corruption policies. These measures often come in response to allegations of corrupt business dealings or a conviction. The cases of Siemens and Wal-Mart, for instance, have attracted wide media coverage.8 In 2008, Siemens AG agreed to pay nearly one billion euros (1.4 billion dol-lars) to US and German authorities to settle charges that it had vio-lated the American federal law (the FCPA) and other national laws. In return, the company committed itself to developing its internal integrity-based policies. Its 2009 handbook9 states that Siemens’ business activities must comply with the law and meet the company’s anti-corruption standards, and sets out how training and support will be provided with a particular focus on those fields most at risk.

Internal anti-corruption policies introduced in the private sector appear to mirror in many respects public sector initiatives, and have been promoted variously by governments, specific ministries, agencies (for instance those supporting development aid or export activities), chambers of commerce, and business unions. At interna-tional level, the International Chamber of Commerce has developed a series of guides setting out anti-corruption best practices in busi-ness including general internal policies and targeting specific issues such as third party dealings (i.e. local business representatives, part-ners), responsible sourcing and anti-corruption clauses in contracts.10

7 http://conventions.coe.int/Treaty/en/Treaties/Html/174.htm8 See “Wal-Mart appoints global anti-bribery watchdog”, Reuters, 24 April 2012 http://www.reuters.com/article/2012/04/24/us-walmartstores-brief-idUS-BRE83N11R20120424; “Siemens settles corruption cases with billion-euro payout”, AFP, 15 December 2008 http://www.google.com/hostednews/afp/article/ALeqM5h6BUdgWzS6Zqmy-96g3lelZQgmRpQ 9 http://w3.siemens.no/home/no/no/omsiemens/Documents/sc_upload_file_anticorruption_handbook.pdf 10 http://www.iccwbo.org/about-icc/policy-commissions/corporate-responsibili-ty-anti-corruption/


In recent years, an increas-ing number of business - especially larger ones-have

introduced internal anti-corruption poli-cies. These measures often come in re-sponse to allegations of corrupt business dealings or a conviction.“

synergymagazine 15

private sector ambiguities, as well as the unclear convolutions of multi-level government at the international level further permit the uneasy blurring of key governing structures, and the methods by which to perniciously influence these structures, making cor-ruption ironically “the most infallible symptom of constitutional liberty” (Gibbon: 1776-88, Chapter 21).

Corruption has a corrosive impact upon good government, and is downright fatal for entire societies when it becomes rooted within the administration of justice. Defining institutional cor-ruption as “the exploitation or subversion of political or juridical institutions by individuals in a position of authority” in which corrupt officials make use of their public position to secure pri-vate interests (Malamis: 2012, 17), this article reflects briefly on the problem of institutional corruption in general, and corrupti-on amongst international arbitrators in particular. These issues, and the general problem of purchasing, or privatizing justice are perforce contentious. It is however a contemporaneous reflection of a serious problem; the observations and suggestions here are therefore designed to initiate a healthy debate on an issue that remains largely unsolved.

Introduction

One of Tacitus’ most famous axioms is that “in a state where corruption abounds, laws must be very numerous”. Is Tacitus suggesting that an abundance of laws helps to prevent corruption, or that a proliferation of laws effectively encoura-ges it? More interestingly, what happens

when the law-makers, both judges and arbitrators, are themselves guilty of the corruption of international justice and the rule of law?

Corruption is no longer a local industry in a few feebly-gover-ned states, but a global phenomenon. Formerly unassailable structures of international justice have been eroded by corrupt practices, formerly unimpeachable justice-makers found guilty of the same, seemingly corroborating David Hume’s observation that “the corruption of the best things gives rise to the worst” (1889: Chapter X). The desire for Hume’s ‘best things’, whether in the form of direct power, indirect influence, or a range of mate-rial assets, is a direct driver of corruption. Equally, weak governing structures operate as permissive factors of corruption. Complex and un-transparent trilateral relations between executive, judicial and legislative levels in domestic spheres, embedded public and

The corrosive effects of corruption

Amelia Hadfield

Senior Lecturer in Interna-

tional Relations Politics and

International Relations

Canterbury Christ Church

University


Contemporary Causes and Outcomes This article reflects briefly on the problem of institutional corruption in general, and corruption amongst international

arbitrators in particular.

16

For reform to take place, an understanding of the conditions that first permit such miscarriages to occur in both judicial and arbitral structures is necessary. From the basis of the ju-diciary, the observations of Justice Florentino Feliciano1 on the causes and outcomes of corruption in his home state of the Phil-ippines are germane. Feliciano suggests that key permissive factors by which “the raw material of the judiciary” is undermined early on include a disconnect between various requirements necessa-ry to take Bar Examinations, interference with bar examination criteria and results, and a variety of culturally-driven modes that together establish a “pathology of judicial corruption” (Feliciano, 2012: 228, 235). In reference to his home state of the Philippines, Feliciano suggests that initial problems arise when applying for permission to take the Bar Examination. The two requirements under Section 2, Rule 138, in which candidates must have no charges of moral turpitude filed or pending, and the need to be of good moral character are simply not mutually dependent. While both requirements must be complied with, candidates with no charges against them, and who may be indeed able to “produce before the Supreme Court satisfactory evidence of good moral character” may themselves not be of good moral character (Feli-ciano, 2012: 233). Compliance with the production of evidence in other words is thus no guarantee of the overall moral character of the candidate.

Feliciano further observes that bar results themselves are in no way “an indicator of the quality of legal education”, and a poor instrument by which to indicate “how loyal and true the new lawyers will be to the law itself... and as dispensers of the justice and truth embedded in the law” (2012: 228). Successful examinees pass on quantifiable grounds alone. The key issue here therefore is that in any given state, a poor corps of lawyers greatly increases the risk of “judges who have failed to measure up to the moral and professional standards required” simply because “judges are

1 Senior Associate Justice, Supreme Court of the Philippines; former Chairman and member, Appellate Body, World Trade Organization.

Crimes of the Agora: The Classical View of Institutional Corruption

The equilibrium of wrongs and rights, of injuries and redress, constitutes the social code, and much of the cultural fabric of national societies. Punishment, and the modes of redress ef-fectively quantify the wronged party. Substantively however, the judge (and to some extent arbitrators) operates as a ‘judgment wielder’ of the law; they are expert in the law itself, but simul-taneously a knower of the wider social mores and customs from which the law arises. As such, judges and arbitrators “will evalu-ate the case and suggest an appropriate settlement with reference to the customs or judicial precedents of the community”, and with reference to judicial institutions (Malamis, 2012: 18). From this perspective, Law-makers have been placed in the position of rendering judgment not merely because of their social status, but precisely because of their deep socio-cultural understanding of the underlying knowledge of a given community. Following Malamis, “an arbiter’s the decision of an arbitrator is the original sense of judgment, but the term also becomes shorthand for the formal process of arbitration itself” (2012: 18).

In remedying individual wrongs, judges and arbiters may ren-der a just, or straight judgment; or if biased, render a crooked one. Judging and arbitrating individual wrongs is essentially a bi-polar process, with a victim and an offender; a loss remedied by proportionate redress. Institutional corruption however, in wha-tever form, is a crime against the entire community. Un-transpa-rent procedures, incorrect substantive methods, ensuing biased judgments all constitute ‘crimes of the agora’: judicial corruption in a collective context. More specifically, such crimes refer to the deliberate exploitation of an institution including a court of ar-bitration “that exists to regulate interpersonal behaviour for the public benefit, for the private benefit of a person who has been entrusted with a position of authority within that institution” (Malamis: 2012,: 22).

Contemporary Causes and Outcomes

Judicial and arbitral corruption generally comprises rende-ring of a biased judgment by a single, or group of judges or ar-bitrators, in order to gain personal influence airing from their de-liberate partiality. Equally, they may simply disregard key facts of a given case, including those dealing with corrupt acts and practi-ces, and render their verdict regardless. As described by Kreind-ler, in the latter case, “the international ordre public would suffer severe damage if an arbitral tribunal were to desist from treating corrupt acts considered as contrary to the public" (2009: 383).

I na state where corruption abounds, laws must be very numerous. Is Tacitus sug-

gesting that an abundance of laws helps to prevent corruption, or that a prolifera-tion of laws effectively encourages it? “


synergymagazine 17

Institutional corruption, as observed by international advo-cates like Global Witness co-founder Charmian Gooch, is part of the wider “global architecture of corruption”, much of which is woven into the extraction and exploitation of natural resources.3 Gooch’s presentation as part of the TED Seminars details the pernicious practices of various African, Asian and Cau-casian leaders in everything from illegal logging, blood diamond and the oil industry. To be sure, many fragile and developing states that manifest corrupt practices have similar characteristics. Specializing in a key export, they tend to be demographically im-balanced between a tiny super-elite rich and a large endemically poor population, with a political system typified by few checks and balances, a poor separation of executive, legislative and judi-ciary, a poor human rights and governance record, and are usually a long-term recipient of development aid.

However, the permissive structure that enables corrupt practi-ces to take root in states with these characteristics is not li-mited to the global south, and Gooch encourages citizens and authorities alike to question the conditions that enable global corruption. The usual suspects of rampant greed, misuse of po-wer and weak governance are themselves only made possible by the actions of ‘global facilitators’ based in the developed West, including global banks who obscure and launder ill-gotten funds, and shell companies permitting illegal banking, tax evasion, and providing safe havens for large sums of stolen aid finance.4 What Gooch fails to identify within her otherwise robust survey of glo-bal corruption is the endemic corruption within law-making in both developed and developing states, and the underlying accep-tance and apathy that permits such enabling practices.3 Charmian Gooch, “Meet global corruption’s hidden players”, http://www.ted.com/talks/charmian_gooch_meet_global_corruption_s_hidden_players.html, accessed 1 August, 2013.4 Ibid

recruited exclusively from the legal profession” (2012: 234).2

Faulty in-house structures are then potentially worsened by a number of cultural proclivities. Highlighting the earlier point regarding the moral and socio-cultural connections at the heart of rendering ‘straight’ judgments, it is clear that in tackling corrup-tion, “judicial reform must realistically draw upon the wellspring and methods of moral reform and these of course include social, religious, and spiritual resources and methods” (236). National proclivities that can feature in the proliferation of corruption, in both judicial and arbitral forums include:

• Religious fundamentalism and revivalism: in which one set of governing norms (sacred) merely replaces another (secular); • Corruption in the civil service;• Corruption in the private sector; • Unchecked deference to authority, leading to unquestioned acceptance of law-breakers and a culture of failing to denounce corruption;• High levels of apathy, enabling the public perception of corrup-tion as not merely widespread but permanently de-legitimated.

The impact is particularly grave on developing states like the Phi-lippines:

Corruption is one of the obstacles to national development – perhaps the single most formidable impediment to the sustainable progress of our nation (Feliciano: 2012, 236) …There is a close nexus between legal and judicial reform and control of corruption one the one hand, and national development processes on the other hand. Corruption clearly aggravates problems of poor economic growth and underdeve-lopment. For the government sector, a major impact of corruption is a loss of scarce budgetary resources needed to meet development pri-orities. For the private business sector, corruption… tends to depress domestic investment and to drive away foreign investment. (Ibid: 239-40).

2 Developed states with a track-record of good governance are themselves not immune to the insidious impact of judicial corruption. See issues of judicial bribery affecting the US in Stratos Pahis, ‘Corruption in our Courts: What it Looks Like

and Where it is Hidden’, Yale Law Journal, 118, 2009.

Many fragile and develop-ing states that manifest cor-rupt practices have similar

characteristics.“The corrosive effects of corruption

18

cessary because it falls beyond the regulatory scope of the com-munity” (Malamis: 2012, 24). Contemporary restoratives howe-ver fall into the realm of reform, advocacy and reactive forms of juridical scrutiny. Some of these now take the form of provisions in international treaties, others feature as regulatory structures of international regimes focused on eliminating corrupt practices in the administration of international law. The general point is the same however, and one that an Homeric audience would indeed have recognized: ultimately, external forces, structures and judg-ments are themselves needed to contain, and correct the problem of corruption.

Gooch suggests unrolling a series of Transparency Laws. If, as she argues, “corruption is a truly globalized business” then it inevitably “needs global solutions from global citizens”.5 The closest that global governance comes to procuring such solutions are the various compendia that gather together key instruments and policies by which to fight different types of corruption. The United Nations Office on Drugs and Crime Compendium of International Legal Instruments on Corruption (2005) is the best exemplar of this, endowing corruption fighters with reams of international legal instruments drawn from across the UN, the African Union, the Council of Europe, the Council of the Euro-pean Union, the Economic Community of West African States (ECOWAS), the Organisation for Economic Cooperation and Development (OECD) and the Organization of American Sta-tes. Ranging from core resolutions to regime-specific protocols, conventions, Model Codes and decisions, the result is an emer-gent canon of anti-corruption measures (binding and voluntary). Together, with the UN’s own keystone General Assembly Resolu-tion 58/4: Convention against Corruption, this canon explicitly criminalizes multiple forms of corruption, and indeed demonst-rates explicitly the global nature of the problem.

5 Charmian Gooch, “Meet global corruption’s hidden players”, http://www.ted.com/talks/charmian_gooch_meet_global_corruption_s_hidden_players.html, accessed 1 August, 2013.

Corrupt judges and arbitrators are undoubtedly part of the net-work of global facilitators. Failing to name the problem and sha-me the culprits means that we, as global citizens, fall into the trap of apathy, and ultimately worsen the problem.

Gods vs. Governance The rupture brought about by a corrupt judge or arbitrator is threefold. First, a breach of the actual quality or rightness of the law; second, an undermining in the community’s faith in the le-gitimacy of the law; third, the harm done to the community and litigant’s trust in the worth of the judicial or arbitral process. More broadly, arbitral corruption undermines the voluntarist nature of ex-court dispute settlement, itself largely based on the ideal of communal faith in arbitral fairness. Undermining such structures leads at best, to a temporary lack of faith in a given arbitrator, and at worst, to wholesale distrust in the entire judicial or arbitral process. Corrupt judges and arbitrators not only undermine the quality of their own judgment; the entire judgment process itself “loses its appeal and consequently its ability to draw disputants who will only participate in the ‘legal system’ in the expectation of a fair outcome” (Malamis: 2012, 22-3). The outcome is disast-rous for individual and society alike. Following the observations of Justice Feliciano, a corrupt arbitrator who substitutes his duty of care to the collective with “the private exclusive interest” of one of the parties in exchange for his or her own reward directly “sub-verts the role of law as the authoritative instrument of peaceful and legitimate change in society” (2012, 238).

Redress must clearly begin at home. The national agora must constitute the first bulwark against early inclinations to corrup-tion. Whilst difficult, “no one disputes the reality an immediacy of the need to raise the standards for admission to the ‘ancient and learned profession of the law’” (Feliciano: 2012, 231). The second step however is raising the moral basis that effectively qua-lifies what Bar Examinees demonstrate quantitatively. Strengthe-ning the methods by which the moral character of new (and practicing) lawyers are checked and periodically re-examined is also necessary. No one has a vested right to pass Bar Examina-tions, nor to pass others. There is however, from the perspective of healthy judicial governance, a “vested interest of the nation and the community to a Bar consisting of men and women with the highest possible standards – professional and moral” (Ibid).

Turning to forms of external redress, the classical writings of the Iliad and the Ennead have much to say on early forms of wrong and redress, but are simplistic in calling upon divi-ne intervention to the problem of corrupt judges. From ancient perspectives, ‘divine intervention’ or retribution was “judged ne-

For the government sector, a major impact of corruption is a loss of scarce budgetary

resources needed to meet development priorities. For the private business sector, corruption… tends to depress domestic investment and to drive away foreigninvestment.

“The corrosive effects of corruption

synergymagazine 19

reasons for this are differences in culture, in legal development, in market development” (Kreindler, 2009: 388). A first attempt at a level playing field, ratified by 116 states as of 2005, the UN General Assembly Convention Against Corruption (Resolu-tion 58/4) has the potential to become a top-down method by which policy-makers, judges and arbitrators effectively demolish the emergent practices and underlying proclivities of corrupti-on in states and international organizations where corruption is rampant. For some, the Compendium is nothing more than a collection of international instruments, an unwieldy amalgam of potential, rather than a potent response. For new and practicing lawyers, and proactive citizens aspiring to become members of their executive, legislative and judiciary, it is a bottom-up method designed to heighten their strategic awareness of any such perni-cious practices. For judges and arbitrators, it is the necessary, but possibly as yet insufficient global accompaniment to their own personal and professional code of conduct.

References

1. Feliciano, Florentino, P. (2012) ‘Random Reflections on the Bar, Corruption and the Practice of Law’, Philippine Law Journal, Vol. 86, pp. 225-242.

2. Gooch, Charmian. (2013) “Meet global corruption’s hidden players”, http://www.ted.com/talks/charmian_gooch_meet_global_corruption_s_hidden_players.html, accessed 1 August, 2013.

3. Hume, David. (1889) The Natural History of Religion, London, A. and H. Bradlaugh Bonner.

4. Kreindler, Richard. (2009) ‘Legal Consequences of Corruption in International Investment Arbitration: An old Challenge with New Answers’, Inaugural Lecture, November, Münster, pp. 383-389.

5. Malamis, David. (2012) ‘Crimes of the Agora: Corruption in Ho-mer and Hesiod’, Acta Classica, Supplementum 4, pp.17-29.

6. United Nations Office on Drugs and Crime, Vienna (2005) Compendium of International Legal Instruments on Corruption, Second Edition, United Nations, New York.

As described by Antonio Maria Costa, Executive Director of the UN Office on Drugs and Crime, the UN-issued compen-dium not only makes clear the range of tools on offer to states around the world attempting to stamp out corruption, but high-lights those obligations by which Member States must “take effec-tive preventative steps to protect the integrity of their institutions” (UN: 2005, v). More broadly, as a practical anti-corruption vade mecum, the Compendium, and its accompanying UN Hand-book on Practical Anti-Corruption Measures for Prosecutors and Investigators, the UN Manual on Anti-Corruption Policies, and UN Anti-Corruption Toolkit, alongside detailed Country As-sessments, heralds the early stages of implementing a truly global governance-level response to corruption.

As a bridge-building effort between the UN, state govern-ments and civil societies, compromises are an inevitable fea-ture. Costa however, argues that despite these, and the complex background negotiations, the urgency of basic tools with which to fight corruption is paramount:

Fighting corruption has become more urgent than ever. As our know-ledge of the phenomenon expands, we realize the extent of the harm it causes. Corruption impoverishes national economies, undermines democratic institutions and the rule of law, and facilitates the emer-gence of other threats to human security… Even when good gover-nance is restored or attained, officials can spend years or even decades attempting to retrieve funds that are often critically needed to repair the social and economic damage done by their corrupt predecessors (UN: 2005, v).

By rationalizing a variety of global solutions, the Compen-dium is thus an effort to subvert not only the expanding ar-chitecture of corruption, but the sheer variability in states’ ability to tackle it. Not all states “play by the same rules. The

Institutional corruption, as observed by international advocates like Global Wit-ness co-founder Charmian

Gooch, is part of the wider “global archi-tecture of corruption”, much of which is woven into the extraction and exploita-tion of natural resources.

“The corrosive effects of corruption

20

Over the decades, the Council of Europe has developed a com-prehensive acquis to assist member states to achieve equality bet-ween women and men. It has done so for all aspects of women’s life through binding instruments as well as soft law. The long list includes Conventions such as the European Convention on Human Rights which guarantees the civil and political rights of women or the European Social Charter regarding their social rights. more re-cently two landmark Conventions - the Council of Europe Conven-tion on Action against Trafficking in Human Beings (2005) and the Convention on Preventing and Combatting Violence against Wo-men and Domestic Violence (the “Istanbul Convention”, opened for signature in 2011) provide comprehensive legal frameworks to assist member states to advance gender equality. An impressive case-law results from the European Court of Human Rights as well as the quasi-judicial monitoring mechanisms set up to supervise how Sta-tes implement their commitments, in particular the European Social Committee or the Group of Experts on Action against Trafficking in Human Beings (GRETA).

The Committee of Ministers and the Parliamentary Assembly of the Council of Europe have repeatedly stated that achieving gender equality is a prerequi-

site for the protection of human rights, the functioning of demo-cracy, and respect for the rule of law.

Hardly anyone contests the formal equality between women and men in the 47 member states of the Council of Europe. Yet, the legal provisions adopted by the Organisation and its member Sta-tes at European and national level in this field, have not necessarily brought changes to the persistent inequalities faced by millions of female citizens across Europe. Time has come for a change and the Council of Europe is committed to advancing the gender equality agenda in the 21st century.

An impressive normative acquis on gender equality

What does gender equality represent for the Council of Euro-pe? The organisation defines gender as socially constructed roles, behaviours, activities and attributes that a given society considers ap-propriate for women and men. Gender equality, for its part, means an equal visibility, empowerment and participation of both sexes in all spheres of public and private life. It also means an equal access to and distribution of resources between women and men. Gender equality is obviously the opposite of gender inequality, not of gender difference.

Gender equality - time for a change

Carlin Scheele

Chair of the Gender Equality

Commission

Council of Europe

Gender equality and the Council of Europe: a new breath?

Time for a change The Council of Europe is committed to advancing the gender equality agenda in the 21st century.

Although the legal status of women in Europe has undoubtedly improved dur-

ing recent decades, effective equality is far from being a reality.

“

synergymagazine 21

Current priority areas in-clude: combatting gender stereotypes in the media, guaranteeing equal access

of women to justice and preventing and combatting violence against women. These priorities are part of the new draft Gender Equality Strategy (2014-2017).

“Based on the Baku Action Plan and Resolution as well as on the above mentioned acquis, the Council of Europe launched a new Transversal Programme on Gender Equality in 2012. The programme is multi-fold: it seeks to make the existing norms and standards known and visible to the authorities and to the general public as well as to support its member States to implement these norms through a variety of measures. In other words, the program-me aims to bridge the gap between de jure and de facto gender equa-lity through a greater impact of the standards. To reach that goal, a gender equality perspective has to be integrated into the Council of Europe decision-making, as well as advisory and monitoring bodies.

New structures have been set up to mainstream equality into all policies, in particular a Gender Equality Commission, appoin-ted by member states, that conducts the inter-governmental work in the field of gender equality; National Focal Points appointed by the authorities of the 47 member states of the Council of Europe, who provide the link between the Council of Europe and the actors and mechanisms that are responsible for gender equality at national level; Gender Equality Rapporteurs appointed by Council of Europe Steering Committees and other intergovernmental and monitoring bodies, to encourage the integration of a gender perspective into the work and activities of their respective structures, the Committee of Ministers Thematic Co-ordinator on Equality and Trafficking and the Inter-secretariat Gender Mainstreaming Team.

All these structures work towards achieving the goals set out in the Action Plan and the Resolution. Current priority areas inclu-de: combatting gender stereotypes in the media, guaranteeing equal access of women to justice and preventing and combatting violence against women. These priorities are part of the new draft Gender Equality Strategy (2014-2017) designed by the GEC in cooperation with the other structures of the Programme.

In addition to Conventions, a number of very important Recom-mendations have been adopted by the Committee of Ministers. One of the core and most comprehensive Recommendations in this field is CM/Rec(2007)17 on gender equality standards and mecha-nisms, which covers civil and family life, economic and social life, health, education, violence against women, as well as structures and institutional arrangements which governments need to establish to ensure gender equality. The Committee of Ministers has also adop-ted very important Recommendations on gender mainstreaming (R(98)14, CM/Rec(2007)13 on gender mainstreaming in edu-cation, CM/Rec(2008)1 on the inclusion of gender differences in health policy). Norms are a good starting point but the Council of Europe and its member states face challenges when translating these texts into practice. Although the legal status of women in Europe has undoubtedly improved during recent decades, effective equality is far from being a reality. Even where progress is visible, gender gaps persist in many areas, maintaining men and women in their traditi-onal roles.

From de jure to de facto gender equality

The Council of Europe Conference of Ministers responsible for Equality between women and men (24-25 May 2010,Baku, Azer-baijan) adopted an Action Plan and a Resolution under the theme ”Taking up the challenge of the achievement of de jure and de facto gender equality” providing a blue print for member states on neces-sary action to achieve gender equality in all spheres of our societies.

A new transversal programme on gender equality


22

The future

Making gender equality a reality calls for a change of culture, a change of perception, removing barriers, overcoming prejudices and sexist stereotypes. In other words, there is a need to profoundly change the system. This is what the Council of Europe strategy on equality is about.

Commitment from public authorities at European and national level, through continuous political and financial support is a pre-requisite. However, citizens themselves should not be overlooked: women and men are the factors of change. In everyday life, women and men together can make a difference: they can change gender relations, empower women and abolish negative traditional gender stereotypes. To do so, women and men should presumably have a common acknowledgement of the need to remove imbalances in so-ciety and their shared responsibility in doing so. For the sake of the society as a whole and for the sake of next generations.

For further information on Gender Equality activities of the Council of Europe please visit our website

www.coe.int/equality

www.coe.int/equality-amsterdam2013

The Council of Europe Gender Equality Strategy

The draft strategy focuses on five priority areas: combating gender stereotypes and sexism, preventing and combatting violence against women, guaranteeing equal access of women to justice, achieving balanced participation of women and men in political and public decision-making and achieving gender mainstreaming in all poli-cies and measures. In Baku, Ministers in charge of gender equality underlined the potential of gender mainstreaming to bring de facto equality. Efforts have therefore been deployed by the Council of Eu-rope, internally and externally, to promote gender mainstreaming throughout the work, activities and policies of the Council of Euro-pe and its member states.

Gender mainstreaming is “the (re)organisation, improvement, development and evaluation of policy processes, so that a gender equality perspective is incorporated in all policies at all levels and at all stages, by the actors normally involved in policy-making”. The definition is complex and gender mainstreaming is challenging as it focuses on “institutionally sexist” systems and structures that

produce deficiencies and disadvantages. However, mainstreaming gender equality is important for a number of good reasons: it puts people at the heart of policy-making, it leads to better government, it involves both women and men and makes full use of human resour-ces, it makes gender equality issues visible in mainstream society and it takes into account diversity among women and men. To be fully operational, political willingness and resources have to be displayed by the relevant authorities. Any action should be based on an already existing specific gender equality policy, and presupposes that women are already taking part in political and public life and in decision making process.

Gender mainstreaming is “the (re)organisation, im-provement, development

and evaluation of policy processes, so that a gender equality perspective is in-corporated in all policies at all levels and at all stages, by the actors normally in-volved in policy-making”.

“ Human Rights Partner of ELSA


Making gender equality a reality calls for a change of culture, a change of per-

ception, removing barriers, overcoming prejudices and sexist stereotypes.

“

synergymagazine 23

murder of her mother. The Court concluded that the discrimination faced by the applicant was gender-based and that little was done by the authorities to protect her from this ill-treatment and her mother from losing her life.

In such cases, aside from the individual measures imposed on States, it is important that they take general measures, both legis-lative and institutional, to prevent recurrence of similar situations.

Following the Opuz case, Turkey signed, and is one of the few States who also ratified, the Council of Europe Convention on preventing and combating violence against women and dome-stic violence; several other measures have been envisaged at national level as part of an action plan. Among them, of particular interest are training of relevant staff (police personnel, medical staff) and addres-sing matters related to employment of women. Regarding the latter,

When talking about gender equality, one immediately and rightly thinks of matters related to the rights of women. Most of the challenges in achieving gender equality relate to women striving to reach the same level of protection of their rights as men enjoy. In the European context, the first stage of this long road, namely achie-

ving recognition for such rights, is more or less accomplished.

But as the European Court of Human Rights has stated and often repeated, “the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective”.1

This statement most obviously proves relevant in relation to do-mestic violence. The Court has found numerous violations in such cases and sanctioned public authorities’ passive attitude to effectively investigating such situations. The most common ground for viola-tions is respect for private and family life, the right to life and the protection against ill-treatment. In 2009 however, faced with a new case on the matter, the Court developed its interpretation and found for the first time that domestic violence is a phenomenon almost exclusively touching women and special measures should be set in place to tackle this matter.2 Turkey was then found in breach of Ar-ticle 14 in conjunction with Articles 2 and 3 following severe vio-lence against an applicant violently treated by her husband and the

1 See, among many authorities, Stanev v. Bulgaria [GC], 17 January 2012 2 Opuz v. Turkey, 9 June 2009

Gender equality - a cross-cutting challenge

Ana-Maria Telbis

President of the

Executive Board of EHRA


Through the EHRA perspectiveThe European Human Rights Association (EHRA) is an independent, non-profit-making, non-governmental organisation composed

of a network of experts from nearly 30 countries. They are committed to improving the effectiveness of the human rights protection sys-

tem through awareness-raising, capacity building and dissemination of information on the European Convention on Human Rights.

In 2009, faced with a new case on the matter, the Court developed its interpretation and found for the first time

that domestic violence is a phenomenon almost exclusively touching women and special measures should be set in place to tackle this matter.

“

24

only the maiden name in official documents for married women6 or married women’s entitlement to benefits under the Dutch General Old Age Pensions Act7. Meanwhile, gender-based discrimination with respect to various rights of the Convention have been found re-garding men: impossibility for men to add their own surname before the chosen family name8, obligation to serve as firemen9, non-en-titlement to payments or to a survivor’s pension for male widows10, contributions to a child care benefits scheme for childless men while there was an exemption from it for childless women11, obligation to undertake jury service in a much higher percentage than women12 or impossibility to take parental leave13 or to obtain compensation for parental leave14 for servicemen.

It can hardly be said that the Court holds something against wo-men. There are also cases brought by men complaining of positive discrimination in favour of women, in which the Court upheld the position of the domestic authorities in justifying such difference in treatment, namely in cases related to institution of paternity procee-dings15, lower pensionable age for women who raised children16 or to entitlement differences in benefits for industrial injuries17. Cases in which applicants complained about being affected as a consequence of endorsing discrimination against women, namely by an obligati-on to include women on the applicant party’s electoral lists18, have also been rejected by the Court.

6 Unal Tekeli v. Turkey, 16 November 2004 7 Wessels-Bergervoet v. The Netherlands, 4 June 2002 8 Burghartz v. Switzerland, 22 February 1994 9 Karlheinz Schmidt v. Germany, 18 July 1994 10 Runkee and White v. UK, 10 May 2007, Zeman v. Austria, 29 June 2006 11 Van Raalte v. Netherlands, 21 February 1997 12 Zarb Adami v. Malta, 20 June 2006 13 Konstantin Markin v. Russia [GC], 22 March 2012 14 Hulea v. Romania, 2 October 2012 15 Rasmussen v. Denmark, 28 November 1984, 16 Andrle v. Czech Republic, 7 February 2011 17 Stec and Others v. UK, 12 April 200618 Staatkundig Gereformeerde Partij v. The Netherlands (dec.), 10 July 2012

one can only speculate that the presence of more women in key posi-tions, from police offices to courts and all the way to the cabinets of the legislative bodies would indeed, if not solve the problem, at least hopefully help keep it under constant scrutiny.

Regarding the first measure, awareness-raising is of crucial im-portance and sensitive issues like domestic violence can hardly be addressed by staff unwilling or unprepared to deal with such mat-ters. This is where training comes into play in the effort to build stakeholders’ capacity in every stage of the human rights protection mechanism.

Notwithstanding the importance of specific training in matters related to cross-cutting issues like gender-based discrimination, an added value comes from the fact that in any given training on topics related to the Convention, such matters can be addressed and information can be disseminated. It is in fact the very nature of Ar-ticle 14 of the Convention to have this cross-cutting dimension, as it can only come into play with respect to one of the rights protected by the Convention and its Protocols.

An overview of the Court’s case-law, without pretending to be exhaustive, shows surprisingly, more cases of gender-based discrimi-nation found with respect to men than with respect to women. Gen-der-based discrimination against women was merely found in Court cases concerning domestic violence3, immigration rules4, terminati-on of an invalidity pension5 following birth, the impossibility to use

3 Opuz v. Turkey, 9 June 2009, Eremia v. Moldova, 28 May 2013 4 Abdulaziz, Cabales and Balkandali v. UK, 28 May 1985 5 Schuler-Zraggen v. Switzerland, 24 June 1993


Gender-based discrimina-tion against women was merely found in Court cas-es concerning domestic vi-olence, immigration rules,

termination of an invalidity pension fol-lowing birth, the impossibility to use only the maiden name in official documents for married women or married women’s entitlement to benefits under the Dutch General Old Age Pensions Act.

“

synergymagazine 25


A gender-based discrimina-tion with respect to various rights of the Convention have been found regarding

men: impossibility for men to add their own surname before the chosen family name , obligation to serve as firemen , non-entitlement to payments or to a sur-vivor’s pension for male widows...

“Thus, noting the higher number of violations of Article 14 ha-ving a gender-based background with respect to men, against the notoriety of the various acts of discrimination against women in several areas, stated by countless reports and yet, not recognised as such by the Court, one logical conclusion to draw is that complaints of discrimination against women never make it all the way to Stras-bourg, if they make it at all before any court. If they indeed manage to benefit from judicial scrutiny at domestic level or even before the Court, many are found to have been weakly argued19.

In recent studies by the Council of Europe20, access to justice for women has been identified as a crucial standpoint in tackling gender equality obstacles. For effective access to be achieved, women need to know how to address authorities to have their rights protected, whereas authorities need to know how to effectively handle specific matters, especially related to sensitive issues like rape or domestic vi-olence. If these two conditions are not met, few cases have prospects of success. Yet, and without necessarily generalising, when it comes to specific training of relevant staff, the need seems to be addressed only once States are found at fault, as seen in the Opuz case. But for these cases to reach the point at which attention to the matter sparks enough to generate preventive or restorative action, at least the first factor (the capacity of victims to effectively build cases of discrimina-tion) needs to be present in the equation. This way, such cases have the potential to reach higher levels of the control mechanism in order to find redress. However, if the second factor is tackled as well, na-mely building the capacity of relevant staff, the last resort of the Eu-ropean human rights protection system, the Strasbourg Court, need

19 A. v. Croatia, 14 October 2010 20 www.coe.int/t/dghl/standardsetting/equality/03themes/access_to_justice/in-

dex_en.asp

not even have to be seised, as issues would be effectively redressed and, in the long run, even prevented, at domestic level.

There are of course several other elements to take into considera-tion, but within the limits of this article, its purpose is set to show at least one point at which the vicious circle can be broken and turned into a straight line towards effectively protecting the rights of women and achieving gender equality.

STUDYCIVIL & COMMONLAW

with a

LOYOLA LL.M. DEGREE

INTERNATIONAL ANDCOMPARATIVE PROGRAMS

College of Law

law.loyno.edu/llm-united-states-law

For more information about ELSA and EHRA cooperation look at:

www.humanrightsmootcourt.org

26

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MB

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LXIV

International Council M

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ovember 2013

Place: Opatija, C

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International Seminar on M

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kraineW

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Email: vpsc@

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Registration deadline: 01/10/2013

ELSA Ex-Yu C

onference on Hum

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ate: 21st- 24th Novem

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lace: Skopje, Macedonia

Contact person: Ana Velkovska

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DE

CE

MB

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Final Conference on O

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Date: 3rd - 8th D

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ail: [email protected]

Website: w

ww.onlinehatespeechconference.org/


EL

SA

E

vents Calendar 2013/2014

FE

Br

UA

ry

XLV

III International Presidents’ Meeting

Date: 12th - 16th February 2014

Place: San Sebastian, SpainW


ontact Information: Joakin de G

oiburu Muguruza

E-mail: president@

elsaspain.esW

ebsite: ww

w.elsa-deusto.org/portalR

egistration deadline: 25/01/2014

European Hum

an Rights M

oot Court C

ompetition,

European FinalsD

ate: 23rd - 26th February 2014P

lace: Strasbourg, FranceW


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da Linneberg Uggen

E-mail: m

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anrightsmootcourt.org

MA

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ELSA M

oot Court C

ompetition, R

egional Round

Date: 10th - 14th M

arch 2014P

lace: Prague, Czech Republic

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E-mail: m

[email protected]

Website: w

ww.elsam

ootcourt.orgR


ELSA M

oot Court C

ompetition, R

egional Round

Date: 26th - 30th M

arch 2014P

lace: Warsaw, Poland


E-mail: m

[email protected]

Website: w

ww.elsam

ootcourt.orgR


LXV


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ate: 16th - 23rd March 2014

Place: St. Julians, Malta


ELSA B

altic Sea Exchange D

ate: 25th - 28th March 2014

Place: H

elsinki, Finland and Stockholm, Sw

edenC

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strömE-m

ail: vpsc@elsasw

eden.orgW

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Date: 23rd - 27th April 2014

Place: Tallin, EstoniaC

ontact Information: M

edeia JaparidzeE-m


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ww.elsa.ee

MA

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ELSA M

oot Court C

ompetition: Final O

ral Round

Date: 13th - 18th M

ay 2014P

lace: Geneva, Sw

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da Linneberg Uggen

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ww.elsam

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ebsite:

ww

w.elsa.org

synergymagazine 27

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LXIV


eetingD

ate: 27th October - 3rd N

ovember 2013

Place: Opatija, C

roatiaW

orking Language: EnglishE-m

ail: contact.icmcroatia@

gmail.com

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ebsite: ww

w.icm.elsa.hr


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ber 2013Place: Lviv, U

kraineW


ontact Information: Anastsiia Verba

Email: vpsc@

elsaukraine.orgW

ebsite: mediation.elsalviv.org.ua


ELSA Ex-Yu C

onference on Hum

an Traffi cingD

ate: 21st- 24th Novem

ber 2013P

lace: Skopje, Macedonia

Contact person: Ana Velkovska

E-mail: president@

elsa-rm.org.m

kW

ebsite: ww

w.elsa-rm.org.m

k

DE

CE

MB

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Final Conference on O

nline Hate Speech

Date: 3rd - 8th D

ecember 2013

Place: O

slo, Norw

ayW


ontact Information: Arm

in Khoshnew

iszadehE-m


Website: w

ww.onlinehatespeechconference.org/


EL

SA

E

vents Calendar 2013/2014

FE

Br

UA

ry

XLV

III International Presidents’ Meeting

Date: 12th - 16th February 2014

Place: San Sebastian, SpainW


ontact Information: Joakin de G

oiburu Muguruza

E-mail: president@

elsaspain.esW

ebsite: ww

w.elsa-deusto.org/portalR


European Hum

an Rights M

oot Court C

ompetition,

European FinalsD

ate: 23rd - 26th February 2014P

lace: Strasbourg, FranceW



da Linneberg Uggen

E-mail: m

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MA

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ELSA M

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ompetition, R

egional Round

Date: 10th - 14th M

arch 2014P

lace: Prague, Czech Republic


E-mail: m

[email protected]

Website: w

ww.elsam

ootcourt.orgR


ELSA M

oot Court C

ompetition, R

egional Round

Date: 26th - 30th M

arch 2014P

lace: Warsaw, Poland


E-mail: m

[email protected]

Website: w

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LXV


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ate: 16th - 23rd March 2014

Place: St. Julians, Malta


ELSA B

altic Sea Exchange D

ate: 25th - 28th March 2014

Place: H

elsinki, Finland and Stockholm, Sw

edenC

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Date: 23rd - 27th April 2014

Place: Tallin, EstoniaC


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ELSA M

oot Court C

ompetition: Final O

ral Round

Date: 13th - 18th M

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lace: Geneva, Sw

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da Linneberg Uggen

E-mail: m

[email protected]

Website: w

ww.elsam

ootcourt.org

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on Maritim

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ispute resolution’D

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ebsite:

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w.elsa.org

28

The role of lawyers

Yasmin Batliwala

Chief Executive

A4ID

International development, gender equality and the role of lawyers

Positioning gender equality as adevelopment goal“There is no tool for development more effective than the empowerment of women”

– Kofi Annan, former Secretary-General of the United Nations

Equality Now work for the protection and promo-tion of the human rights of

women and girls around the world, which includes calling for the global repeal of all laws that discriminate against women. “

In the year 2000 world leaders formally agreed a set of United Nations Millennium Develop-ment Goals (MDGs) to encoura-ge and coordinate international de-

velopment efforts. Along with targeted reductions in the number of people in the developing world living in ext-reme poverty and hunger, the number contracting HIV, malaria and TB and an aim to achieve universal prima-ry school education, the goals included a global commit-ment to “promote gender equality and empower women”.

By positioning gender equality as a development goal, states prioritised female empowerment not only as an end in itself, but also as a pathway to securing further de-velopment and anti-poverty benefits. Greater empow-erment of women, world leaders argued, leads to bet-ter education outcomes for their children, an increase in total economic productivity and healthier communities.

As the world moves towards the deadline for the achie-vement of the MDGs in 2015, attention is switching to how successful they have been and what will fol-low on from them. The specific targets included un-der the broad promotion of gender equality goal inclu-ded in the MDGs were arguably modest, including only:

•The ratios of girls to boys in primary, secondary and tertiary education•The share of women in wage employment in the non-agricul-tural sector and•The proportion of seats held by women in national parlia-ments.

What’s more, success against them has been patchy. Whilst, in much of the world, gender parity in primary education has been reached, there are still significant barriers to women pro-gressing in employment globally and securing higher-paid jobs.

Looking forward, there are indications that the gender equality agenda will be advanced in the next internatio-nal development framework and could be dramatically ex-tended. When the High Level Panel tasked by the current Secretary-General of the UN, Ban Ki-Moon, to draft a se-

synergymagazine 29

The role of lawyers

ries of illustrative goals and targets for the post-2015 frame-work reported in May this year, their report included propo-sals that would go well-beyond the MDGs. Taken together, for example, the two illustrative international targets to

•“eliminate discrimination against women in political, econo-mic, and public life” and •“ensure equal right of women to own and inherit property, sign a contract, register businesses and open a bank account”

if achieved, would significantly shift the economic sta-tus of women globally in a world where women current-ly account for 70% of people living in absolute poverty.

What lawyers are doing to help

Advocates for International Development (A4ID) is the charity that empowers lawyers to use their skills to fight world poverty. One of the ways that we do this is by brokering pro bono legal support to those non-governmental organisations, institutions and community groups that are contributing to the realisation of the MDGs, including the gender equality goal. By doing so we are giving lawyers who care about international gender equality an avenue to practically support its realisation.

For example, A4ID has recently brokered pro bono legal projects contributing towards gender equality for both Equa-lity Now and the World Bank.

Equality Now work for the protection and promotion of the human rights of women and girls around the world, which includes calling for the global repeal of all laws that discriminate against women. As an organisation they rea-lise that legal discrimination against women can take many forms, including implicit discrimination through gender neutral laws, the inadequate enforcement of laws and lack of access to justice. This can make their work to realise their objectives very complex and means that they need to be able to access lawyers who both understand domestic laws and how they are implemented within the country context.

Through our pro bono lawyers from the Democratic Re-public of Congo, Ecuador, Burma, Somalia and Tunisia A4ID was able to ensure that crucial legal research rela-ting to discriminatory laws in these countries was conduc-ted for Equality Now, supplementing their own research.

A4ID also secured lawyers acting on a pro bono basis from a number of jurisdictions including India, Portugal the UK and USA to assist the World Bank with their Wo-men, Business and the Law project. Through the Women,

Business and the Law project the World Bank benchmarks the laws and regulations that affect women’s access to em-ployment and entrepreneurship opportunities in over 140 countries and territories worldwide. The results are subse-quently published in the Women, Business and the Law re-port on an annual basis. As with Equality Now, the World Bank considers the pro bono support of local lawyers abso-lutely essential to the production of this document that helps governments and NGOs across the world understand the international environment for businesswomen and workers.

These are just two of the pro bono projects that A4ID has brokered, helping to realise gender equality through the legal skills of practising lawyers. As the MDGs come to an end and the empowerment agenda is extended and enhanced post-2015 we will continue to work to ensu-re that lawyers who care passionately about this issue are able to use their legal skills to do something about it.

30

Statistical perspective on the gender equality

Lina Fjelkegård

PhD of Social Sciences at

Stockholm University

Gender equality in the EU from a statistical perspective

From private to public domainStatistics never give us the whole picture, but still show us that there is a reason to continuously apply a critical mindset as to how

equal we actually are in the EU.

In the EU as whole in 2011 women were paid in

average 16,2% less than men. “Statistics will never give us the whole picture. It can´t tell us everything or show us all that matters. What it can do however is to give us a description

of some aspects of a situation and work as an indicator in our searching for understanding of a phenomenon. Statistics about gender equality is not an exception. It will only tell us a small part of what there is to know. We also need scientific theories and qualitative research to explain aspects that are not possible to observe and measure. Another important aspect is that I, as a writer, have the power of definition here. I can define what equality is and what kind of statistics we should care about. For me gender equality is about equal opportunities to form the society and your own life and that will of course influence what kind of data I find interesting. Maybe you have a different idea. So please be critical against the numbers I will present to you here. Consider if they are good and meaningful mea-surements of equality and what kind of information could serve as useful complements. And if you think that the data is meaningful, do also think about possible explanations to the differences between the situations for men and women and between the European countries, and how we can change it.

The private domain

If we start by looking at economic issues we can see that there are certain differences between men and women in the EU (Croatia is not included in the statistics). In the EU as whole in 2011 women were paid in average 16,2% less than men. The smallest difference between men and wo-men in average pay are found in Slovenia (2,3%), Poland (4,5%) and Italy (5,8%) and the biggest gaps are found in Estonia (27.3%), Austria (23.7%), and Germany (22.2%). Differences between countries can be explained by differen-ces in the occupations and activities that tend to be male- or female-dominated, differences in the degrees to which men and women work on a part-time basis, as well as the at-titudes towards career development and maternity leave.

Associated to this is the structure of the labor market and the activity rate. (The activity rate includes the part of the population age 15 or older, that are economically acti-ve, employed or unemployed). It is obvious that men are a part of the labor market to a larger extent than women. The EU average activity rates in 2011 were 77,6% for men and 64,8% for women. The highest difference between the sex-

synergymagazine 31

Statistical perspective on the gender equality

es is in Malta (men 78,5%, women 44,1%), and the smal-lest in Lithuania (men 73.6 %, women 69.3%). If we iso-late the employment rate we can see that there seems to be a connection between employment and number of children, but that this connection works different when we compa-re men and women. The employment rate for women aged 25 to 54 decreases as the number of children increases, while for men in this age group the pattern is the opposite.

So what about the family life in Europe? The mean age of women at childbirth in the EU is 30,0 years. The highest mean age is in Estonia and Ireland (31,5 years) and lowest in Bulgaria (27,1). Ireland is also on the top when it comes to the average number of children with 2,05 per woman. Hun-gary is in the bottom with 1,23 children per woman. Explana-tions to the differences between the countries might be found in the different national systems around childcare, financial child support and parental leave, as well as the educational

STATE WOMEN MEN

Sweden 44 56

Finland 43 57

Denmark 41 59

Belgium 40 60

Netherlands 38 62

Spain 37 63

Germany 33 67

Austria 29 71

Portugal 29 71

Slovenia 27 73

France 25 75

Lithuania 24 76

Bulgaria 23 77

Latvia 23 77

Luxembourg 23 77

Poland 22 78

United Kingdom 22 78

Estonia 21 79

Greece 21 79

Italy 21 79

The Czech Republic 20 80

Ireland 19 81

Slovakia 19 81

Cyprus 11 89

Romania 10 90

Hungary 9 91

Malta 9 91

systems and structure at the labor market in more general and the possibilities for women to combine family and career.

There are also statistics that show that it is more common that women take the main responsibility of the children at separations. There are around 200 million households in the EU. 4,5% of these are single parent households and among the single parents household it is seven times more common with single mother household than single father household. This pattern is the same for all member states.

The public domain

Only six of the 27 member states have a female main po-litical leader (prime minister or president); Lithuania, Slo-vakia, Denmark, Slovenia, Cyprus and Germany. In 20 of the 27 countries the proportions of women in the national parliament is less than 30%. Only the Nordic countries and Belgium have proportions of women at 40% or more. Proportion of women and men in national parliaments

With 35% women and 65% men, the distribution in the EU-parliament is slightly better than the average member state, but it still contains an underrepresentation of women.

When looking at power structures in the private sector the pattern is the same. In the largest listed companies in the EU one finds that only about 16% of the board members are women. The highest share of female board members are found in Finland, but the proportion is still under 30%. The poorest representation of women in the power of private companies is found in Malta (4%).

As mentioned in the beginning, statistics are only statistics, and they don’t give us the whole truth. As an indicator, the statistics above however show us that there is reason to conti-nuously apply a critical mindset as to how equal we actually are in the EU.

In 20 of the 27 countries the proportions of women in the national parliament

is less than 30%. Only the Nordic coun-tries and Belgium have proportions of women at 40% or more. “

32

ELSA Moot Court Competition

Oda Linneberg Uggen

Vice President for

Moot Court Competitions

ELSA International

All around the world: the ELSA Moot Court Competition (EMC2)

The impact of the EMC2 on participantsThe ELSA Moot Court Competition started in 2002 and it has had a steady increase of teams participating since then. The12th

edition is bringing an important expansion as well, a new Regional Round in Africa.

Today, the ELSA Moot Court Competition con-sists of two European

Rounds, one Regional Round for North and South America, one Regional Round for Asia and the Pacific and for the very first time this year; one Region-al Round for Africa.

“As an association that has as a pur-pose to contribute to legal education and foster mutual understanding, ELSA has developed numerous acade-mic projects, providing law students with many opportunities. Some of the means to reach the association’s purpo-

se and vision, are to provide opportunities for law students to learn about other cultures and legal systems in a spirit of critical dialogue. Another mean is to assist law students to be internationally minded and professionally skilled. An acade-mic project of ELSA who fulfils all of the above mentioned is the ELSA Moot Court Competition (EMC2) on WTO Law.

“Not only has the EMC2 thrust my academic and professional career, it also contributed to my understanding of different cul-tures. It helped me learn about different legal systems, different understandings of Law, and most importantly: it introduced me to people that I now consider very good friends.”

Santiago Wills, Professor, International Economic Law, Universidad de los Andes’ Law School, Bogotá-Colombia.

The ELSA Moot Court Competition, which is a simula-ted hearing of the World Trade Organization dispute sett-lement system, started out in 2002, and has had a steady increase of teams participating since. At the beginning, the

aim was to establish a European Moot Court Competition, and the topic of trade law was chosen as it was lacking in many curriculums of European universities, and there were no other competitions on this topic. However, the topic of trade law soon proved to be an attractive topic for many students outside the boarders of Europe, and non-European Regional Rounds were established already in the second edition.

Today, the ELSA Moot Court Competition consists of two European Rounds, one Regional Round for North and South America, one Regional Round for Asia and the Paci-fic and for the very first time this year; one Regional Round for Africa. ELSA International and supporters of the compe-tition are working continuously on further expansion. This year, a special focus is being put on promotion of the competi-tion in underrepresented regions. The competition has strong, long term financial contributors and a lot of academic support from the World Trade Organization itself.

synergymagazine 33

ELSA Moot Court Competition

Since the competition has been organized for so many years, the pool of team coaches continues to become highly qua-lified, and the coaches can transmit their knowledge to the teams. The structure of the competition, with both written and several oral rounds, increases the level of academic quality and provides the participants with unique experiences and ac-quaintances that they will benefit from in their future career. The teams who make it to the various Regional Rounds and the Final Oral Round today, get the chance to plead in front of esteemed experts in the field of trade law.

“The competition is among the very few moots in the world which does justice to the complexity and specificity of knowledge involved in the problem by maintaining the highest standards in panellists judging the rounds. These are professionals and academics who work to constantly develop the field of WTO Law. Very rarely do you come across moots where quoting members of panel, sitting across the table as acclaimed authors, is a common feature.”

Nishant Anurag,Amity Law School, Delhi, India

The impact that the ELSA Moot Court Competition has proven to have on the academic level in participating coun-tries and universities, is the reason behind our motivation as an organization to spend time and effort on organizing the competition every year, and for constantly working on the ex-pansion. We also believe this to be the motivation behind the efforts of our strong supporters. With the ELSA Moot Court Competition, the European law student’s association is able to contribute to legal education and foster mutual understanding not only in Europe, but all around the world.

“Being a foreign student from a developing country, I could only dream of having a scholarship abroad in a field that I am keenly interested in. EMC2 translated my dream into reality.”

Vida Soraya S. Verzosa, Team Captain, Ateneo de Manila University School of Law, Philippines

34

Interview

Anneloes Dijkstra

President

ELSA International

Interview: Mr. Russell Denoon Duncan

Our former Patron about gender equality and ELSA Mr. Russell Denoon Duncan is the former Patron of ELSA Poland and of ELSA International.

We are thankful and happy to have the opportunity to have an interview with our honorable member of ELSA.

When did gender equality become interesting for you?

When I first began to think about business organisation. Long before gender equality became a prominent issue, our firm decided that males and females would be treated equally – selection of trainees, remuneration, prospects and workload. There is a little story here.In implementing this policy we found that the female applicants for trainee positions tended to be of higher quality than the males and so were reruiting a greater proportion of females. We also found that a high prorportion of lady lawyers when making decisions on their lifestyle/work balance left the profession early. It was in the firm’s interests to have the lawyers trained in the firm to re-main with us. So at a partners’ meeting I said whilst the po-licy was fine we were getting too many women in the firm. By the time when I got back to my desk, there was a tie* on it with a note "From those women". *On this tie was a picture of a pig and underneath it the letters MCP, an abbreviation for ‘Male Chauvinist Pig’, a description of a man who thought that females were inferior. I guessed who had sent the tie to me, so I put on the tie and went to thank them.

This incident pleased me. It was good humored and importantly it showed that the girls knew they could tease me

without harming their future prospects in the firm in any way. What was your focus in this issue?

To treat people as indivdual human beings and with respect. Also to apply gender equality and other policies with some practical commonsense. Can you tell us something about the “gender mainstrea-ming”?

I do not see any way of achieving universal gender equali-ty quickly. It is a question of education and persuasion. The proposition that males and females can achieve equal success seems to me self-evident and is demonstrated by ample evi-dence. One has only look at the achievements of lady Pre-sidents and other officers of ELSA. (I am confident that the current President of ELSA International will make another contirbution to this evidence!). The achievements of women in so many other fields are also there to be seen. There was a time in my life when I was under some formida-

Petra Podgoršek

Deputy Vice President for

Marketing

ELSA International

synergymagazine 35

Interview

ble ladies: First, Her Majesty the Queen, then Lady Thatcher, the Prime Minister of the United Kingdom, as well as Lady Donaldson, the Lord Mayor of the City of London. I survi-ved! And I greatly admire each of them. It may seem a little frivolous to include my secretary and my wife in the list but each of them affected how I acted and thought and also have my admiration.

As a former Patron of ELSA, how do you see that our orga-nisation could help to decrease the marginalization of any men or women, and do something good for our society?

Well, from my experience in ELSA it is already doing great good for society as well as benefitting its members, especially those who actively participate in its administration. For as long as I have been associated with ELSA, females have had a major involvement in ELSA and contributed to its success. So I think ELSA should continue as it is. The best way of pro-moting gender equality is by showing that it works. So show that it works in ELSA! To look at it in a broader sense, what do you think every citizen could do, to contribute to gender equality?

Look around them and use their commonsense. Of course, there is are differences between male and female – I delight in these - as there are within females and within males; it would be a very boring world if there were not. But being different does not mean being inferior. Being a long time supporter of ELSA, what was the reason for you to become our Patron and how do you see your role and ELSA in general, today?

In 1989 when Poland regained its sovereignty, lawyers in Bri-tain created an association to work with our Polish colleagues and with the British Foreign Office as Poland moved to a more democratic society and a free economy. As Chairman of the association, I used to visit Poland and was introduced to ELSA Poland. I was greatly honoured to be appointed a pat-ron of ELSA Poland. Later on I became associated with ELSA International and I was further honoured to be appointed a patron of ELSA International. When I stopped going to Poland frequently I stood down as patron of ELSA Poland and when I stopped being active in the profession I stepped down as patron of ELSA International. I thought it would be wrong to remain a patron when I could no longer contibute in the way I thought a patron should. However, that does not diminish my admiration and support for ELSA or my special affection for ELSA Poland. I remain

ready to support and asssist ELSA and promote its ideals in any way I can. The title is not signficant.Being in the company of ELSA members is a pleasure and I come away feeling that whatever problems we face in the fu-ture ELSA members will play a positive part in solving them.

How would you encourage our members to be active in ELSA?

A remarkable feature of ELSA is that it is the students them-seves who have made ELSA what it is. With 38,000 members committed to its ideals ELSA will I believe be increasingly important for the development of Europe. Everyone who has actively contibuted to ELSA is entitled to be proud of having done so.

ELSA is not only making a really important contribution to society generally, it also benefits its members. As a former Se-nior Partner of a large law firm in the City of London I can assure ELSA members that I believe active participation in ELSA will prove to be good for their careers. They will learn skills not normally acquired in academic studies. They will also have an opportunity of expanding their network – incre-asingly important as life becomes more global. Do you have a message for our ELSA members?

Yes. What you have achieved is quite remarkable. You are do-ing a great job – something that is really important, something that can benefit each of you and will benefit all of us. Always remember the inspiring words of the ELSA vision. And never surrender your complete integrity.

Mr. Russell Denoon Duncan with ELSA International 09/10

36

ELSA Day

Federica Toscano

Vice President for Seminars

and Conferences


ELSA Day

Cooperation as a key to successIn 2013, when ELSA Day was organised for the first time, our Network showed their power to work together.

On the same day, around 150 events took place simultaneously in 31 countries.

The ELSA Network is a strong Net-work very committed to Human Rights. This engagement has always been clear, but the outstanding results of the first edition of the ELSA Day made it evident.

Since the moment when the idea of creating an Interna-tional Forum on Human Rights was presented during the International President Meeting that took place in Paris at the end of August 2012, the Network endorsed the initiative with enthusiasm and National Groups, coordinated by ELSA In-ternational, immediately involved their local chapters to plan their contribution to the Forum. On the 20th of March 2013, around 150 events took place simultaneously in 31 countries. ELSA demonstrated once more to be able to participate to the European discussion on human rights not only with high quality events, but also with the energy and originality of youth. A large number of events addressed not only law students, but all interested people, gi-ving an important contribution to the general awareness of this topic; “All different, all together” as said the slogan of the ELSA Day. In Croatia, law students organised lectures to exp-lain what are the rights included in the Universal Declaration, and therefore what are the international standards to be gran-ted to all people. In Austria, a local group organised a mara-thon that involved young students from different Universities, while in Hungary a panel discussion on freedom of speech took place. At the same time, in Kazakhstan an ELSA group raised the discussion on children’s rights, in Czech Republic

one of the topics chosen was rights of disabled people and in Turkey gender equality in the job market. These are only some examples of the large variety of events that constituted this international forum.

The importance of the outcome of the ELSA Day goes beyond the quality of the events organised and the rele-vant topics discussed. Young students and young lawyers de-monstrated their determination to overcome borders in the realisation of high quality projects with professionalism and originality and to show their colleagues the importance to add internationality to their education and their formation as lawyers. ELSA members demonstrated their commitment to contribute to the good of the society. Moreover, the Network demonstrated that cooperation is the key to success. The result

In Croatia, law students or-ganised lectures to explain what are the rights included in the Universal Declara-

tion, and therefore what are the interna-tional standards to be granted to all peo-ple. In Austria, a local group organised a marathon that involved young students from different Universities, while in Hun-gary a panel discussion on freedom of speech took place.

“

synergymagazine 37

ELSA Day

is a stronger Network, aware of its strength and of its powerful voice, a Network in which students worked on a project to-gether, from the west to the east, from the south to the north. This is the reason why the Council decided unanimously to organise the ELSA Day annually for the next five years, and to include it in the Strategic Goals for 2018.

I am proud of the great results of the first edition of the ELSA Day: The Network endorsed this challenge with an amazing enthusiasm which was an irreplaceable source of mo-

tivation during the preparatory months and later.

I am confident that in the next years we will be surprised again and again with new great achievements of the ELSA Network. The motivation, professionalism and quality of the first edition are a warranty for a long story of successful ELSA Days.

38

Online Hate Speech

Tino Boche

Vice President for

Academic Activities

ELSA International

One voice against Online Hate Speech

International Legal Research GroupELSA International launched the International Legal Research Group on Online Hate Speech in order to contribute to combat-

ing Hate Speech on the Internet and to raise awareness among students about the main topic of the new campaign of the Council

of Europe – No Hate Speech Movement – and its importance for their studies and future lives.

From the shores of Portugal to the windy mountains of Georgia - from the Norwegian fjords to the sun of Malta - ELSA unites its members to

raise awareness about a new hot legal law topic and everyday life issue: Online Hate Speech.

Since the beginning of this summer, 25 countries started a Legal Research Group in cooperation with the Council of Europe to deal with questions linked to the subject of Online Hate Speech and the legal challenges connected. This project is follow up to a previous Essay Competition which was con-cluded in spring. The competition itself was focused on online hate speech and whether is a right or a crime due to the fact that it also tackles issues of freedom of expression.

But ELSA is doing more. As an association we involve 42 countries with more than 38000 members and we are unseeing the advantage of this network. Students, from the whole network use their Social Media and communica-tion channels to spread the message of the campaign to their friends and contacts, while they are introducing important

legal questions at the same time that will be answered by the Legal Research Groups. The peak of ELSA’s contribution to this campaign will be the final conference about Online Hate Speech in Oslo, Norway from the 3rd to the 8th of December. During this meeting the student researchers as well as legal professionals and practitioners from all over Europe will come together to discuss the results of the research, new developments in this field of law as well as the latest case law. This is not only a unique opportunity to exchange knowledge and experiences but also to contribute to legal education and raising awareness in a still undiscovered and unknown field of law.

Since the beginning of this summer, 25 countries started a Legal Research

Group in cooperation with the Council of Europe to deal with questions linked to the subject of Online Hate Speech and the legal challenges connected.“

synergymagazine 39

Online Hate Speech

But this is not all. The connection and involvement of online aspects with that topic opened the opportunity to transfer legal knowledge with the help of new tools. These reflections ended in a new project which will be launched pa-rallel to the Legal Research Group – an Online Survey in co-operation with the Council of Europe, with important ques-tions and results brought up throughout the year. This is a so far unique way to introduce students and young lawyers in an

easy with latest legislation, updates and news, related to the topic in general.

The subject is important and more and more young people realise this, because they know situations or cases in which friends or family were affected by the problematic nature of for example cyber hate or cyber bullying. With that in mind we can just say: "It is still time to take part in our projects so don’t waste your chance to contribute with your knowledge and inputs in one of these unique opportunities! "

For more information, visit:www.elsa.org/projects/onlinehatespeech

…or stay tuned on Facebook:www.facebook.com/elsa.org

Final conference onOnline Hate Speech:www.onlinehatespeechconference.org

The peak of ELSA’s con-tribution to this campaign will be the final conference about Online Hate Speech

in Oslo, Norway from the 3rd to the 8th of December. During this meeting the student researchers as well as legal pro-fessionals and practitioners from all over Europe will come together to discuss the results of the research.

“Camapaign for the Online Hate Speech within the ELSA Network.

40

Health Law- Evaluation

Antoniella Biasi

Director for International

Focus Programme


International Focus Programme 2010-2013: Health Law

After three years it's time for evaluationDuring the International Council Meeting in Malta, in 2010, a new hot legal topic was selected

for the period 2010-2013: Health Law. Now it is time for the evaluation of this 'old' topic and a new topic to work

on. From 2013-2016 our focus will be on Media Law.

and strengthen new partnerships, to analyse all potential sub-topics, to launch long-time projects and to show to our members and externals how beneficial is to work on the same goal and how active and professional our association can be.According to this idea, the first year was dedicated to stra-tegic planning, research for new partners and creating the awareness of the topic among members and officers, also through specific tools such as a new IFP Handbook and the IFP Newsletter, created with the aim to update the Network on the status of implementation of the IFP, as well as to pro-mote upcoming events and share ideas. During this first year ELSA launched the first IFP Essay Competition in coopera-tion with the Erasmus Observatory on Health Law (EOHL) in Rotterdam, that soon became its IFP main partner. Stu-dents and young lawyers had the opportunity to improve their writing skills and it became a good tradition, because other editions were launched during the last two years, focusing on different areas, from Right to Healthcare to Biotechnology.

The third year was the most important because we had to face a double challenge: to complete the implemen-

tation of the IFP topic Health Law and finalise the result, and, at the same time, to choose the new IFP topic (Media Law) and create the basis for its implementa-tion.

“The International Focus Program-me (IFP) was introduced in 1994 as a common focus for the whole ELSA Network with the aim to create an opportunity to work together on the

same project, to raise the awareness on a hot legal topic and to offer to our members the chance to deepen their know-ledge by taking part in high quality activities. Since then, many topics have been chosen and finally, during the Inter-national Council Meeting in Malta, in 2010, a new hot legal topic was selected for the period 2010-2013: Health Law.

Health Law was, and still is, a developing area of law, internationally relevant, strictly connected to Human Rights and many other fields of law and its regulation is very different from country to country because approa-ches and legal solutions depends on culture, tradition, reli-gion and political situation. We saw it clearly while going deeper into sub-topics such as Euthanasia, Abortion Law, Bioethics, Mental Health Law, Healthcare Systems and many others and it was really interesting to compare them and to raise the discussion at a European level through our events.

The duration chosen by the Council was three years, for the second time since the introduction of the IFP. Why? The experience of the previous topic showed that it was bet-ter to have a longer implementation cycle in order to start

synergymagazine 41


One of the biggest international projects was the IFP Opening Conference on Health Law, held in Prague, Czech Republic, in February 2011. The second year was meant to be the core of the implementation at all levels and many other activities were organised: moot courts, seminars, conferences, law schools, institutional visits and essay com-petitions, but also the number of STEP traineeships in the Health Law area began to grow. Another IFP Essay Compe-tition was launched by ELSA International and EOHL and the IFP Mid Evaluation Conference took place in Trieste, Ita-ly, in April 2012, focusing this time on Mental Health Law and Human Rights. Planned and launched at the end of the previous year, also a new international project started: the Joint Research Project in cooperation with IPSF (the Inter-national Pharmaceutical Students’ Federation). Two students from ELSA and IPSF worked under the supervision of the International Pharmaceutical Federation (FIP) on the specific topic “Competition Law and Pharmacy Law” and officially presented the final result at the Mid Evaluation Conference.

And then we came to the final step. The third year was the most important because we had to face a double challen-ge: to complete the implementation of the IFP topic Health Law and finalise the result, and, at the same time, to choose the new IFP topic (Media Law) and create the basis for its implementation. It was a hard plan, but the Network showed its commitment in the best way: the number of STEP trainee-ships grew even more, as well as the number of activities. A

new IFP Essay Competition was launched, strengthening our partnership with the EOHL, and the IFP Final Conference organised by ELSA Gdansk, Poland, in May 2013, marked the end of the cycle of conferences, with a special focus on Phar-maceutical Law, Cosmetic Law and Medical Malpractice Law.

Now, after three years, as the title says, it’s time for evalua-tion. If you ask me about my personal experience, I can only say that it didn’t happen by chance that I applied for the po-sition of Director for IFP, because I was attracted by the topic since the very beginning. When the first term in office came to an end I decided to do it again. Why another time? Because through the IFP I discovered the real meaning of the Net-work, the importance of team-work and strategic planning, the satisfaction you get when many officers, together, reach such an impressive result. In my opinion, Health Law was a very good choice: versatile, interesting, with a great discus-sion potential and useful for law students and young lawyers that usually don’t have the possibility to go deeply through the field during their studies. Moreover, it allowed us to start new partnerships that probably will last for a long period and will lead to other successful projects and collaborations.

The Final Publication will be soon presented, so stay tuned if you are curious about the results and want to know the story more in detail. In the meanwhile, as you know we have a new topic to work on, Media Law: another challenge is starting right now! Don’t miss the chance to be part of the next IFP era!

42

Media Law

Gábor Benke

Doctoral candidate

Department of Legal Studies

Central European University

Let me regulate you

A sketch of European mass media regualtion A huge influence of media on people triggers, of course, attention by regulators. But what to regulate and why?

sion is just another appliance. It is a toaster with pictures." Well, toasters can have functional problems too, can’t they?The two most important sources of European media law are the EU-level harmonization of media regulation and the Euro-pean Convention on Human Rights (ECHR or Convention). EU-level media regulation affects electronic mass media, inclu-ding broadcast and online platforms, my focus for this article.

EU regulation; Harmonization of national laws and the principle of country of origin.

Legal harmonization is a general regulatory tool to sup-port the single market within the EU. Without legal har-monization, Eurosport, as an international broadcaster, for example, would be punished in member state X for the same content that would be fully acceptable in member state Y. It

Nobody praises television. We say it makes us dumb, controls our lives, seduces our kids, tells us how to vote. Nevertheless, a quick Goog-

le search reveals that we watch TV roughly four hours a day... yes, the average European viewer consumes roughly four hours of television on a daily basis. This huge influ-ence of media on people triggers, of course, attention by regulators. But what to regulate and why? In a liberal sta-te, regulation is deemed necessary when there is a functio-nal problem that cannot be solved without intervention. It’s possible to easily identify the main fields for regulation by flagging keywords routinely associated with television. Here are some, paired in order to demonstrate some tension:

• media freedom vs. censorship;• business vs. culture; • monopoly vs. diversity of content;• politics vs. education; • local vs. international.

These pairs also represent pros and cons, which trig-ger different regulatory solutions in various parts of the world. In the U.S., for example, there is somewhat less control over editorial content than in Europe. Mark Fow-ler, former head of the U.S. Federal Communications Commission, said back in 1981 while arguing for dere-gulating what we now call electronic media that “(T)elevi-

Without legal harmoniza-tion, Eurosport, as an in-ternational broadcaster, for

example, would be punished in member state X for the same content that would be fully acceptable in member state Y. “

synergymagazine 43

may be somewhat surprising, but is true, that the protection of the single market is the most important regulatory aim at the EU level. For example, tobacco advertising has been pro-hibited across Europe in order to enhance the single market, as opposed to protecting human health. Electronic media has been regulated at the EU (formerly EC) level since 1989. The currently prevailing legal instrument on harmonization measures is Directive 2010/13/EU. In terms of regulatory technique, this directive (as well as its predecessors) includes an extremely powerful instrument that is very rarely used in regulating other areas at the EU level. It is called the “count-ry of origin principle” (COOP). The COOP means that in-ternational broadcasts are subject to the jurisdiction of their home country only. It is easy to understand the power of the COOP by looking at the issue from the angle of the desti-nation country; authorities of this country do not have a say over broadcasts coming from a foreign EU member state. The COOP was first tested before the European Court of Jus-tice (ECJ) in 1996 in a Belgian case (VT4 v Vlaamse Geme-ensap, C-56/96), where VT4, a broadcaster established in London, was refused access to the Belgian cable distribution network, based on the argument that only Belgian channels may operate in Belgium. The ECJ stated in its judgment that this refusal goes against the freedom to provide services, and VT4 is entitled to operate in Belgium as a UK broadcaster, even if VT4 it does not offer services in its home country at all.

The broadcasting business is rather equity-intensive, there-fore the choice of the cheapest and most convenient venue for broadcast operation is very important, and international broadcasters can afford this “forum shopping.” Therefore, in ad-dition to protecting the single market, the COOP has a side effect of inducing regulatory competition among EU member states.

The European Convention on Human Rights. EU media re-gulation is typically for exerting control over media, while the Convention, through its Article 10 on freedom of expression, aims to protect media freedom. The Convention is enforced by the European Court of Human Rights (ECtHR) which has developed a distinct body of case law on press freedom. The hard cases of the ECtHR based on Article 10 typically present clashes between the right to free speech on the one hand and

other fundamental rights (e.g. religion, personal dignity), or interests of the society (e.g. national security, public safety) on the other hand. The ECtHR’s approach to these cases is based on the primacy of free speech, especially political speech. At the same time, the Court tends to be deferential to local autho-rities and legislative bodies if there is a serious doubt as to the proper decision in the given matter. This latter policy, which is termed “margin of appreciation,” reflects the reality of diver-sity in Europe; nobody can expect that a particular issue that deeply involves culture, traditions, or politics should be trea-ted in the same way all over Europe. As to the media, the EC-tHR considers that “the press has a vital role in the democratic society as a public watchdog” and has a privileged position. To illustrate the painful dilemmas involved in deciding over free speech rights cases, let’s look at a recent decision of the ECtHR. In Animal Defenders International v the UK (Application Nr. 48876/08, judgment 2013) the highly protected right to freedom of political speech clashed with the threat to the impartiality of broadcasting. The dispute is rooted in the statutory prohibition of paid political television advertising in the UK. Animal Defenders International (ADI), whose advert was refused broadcast in the UK, argued that this prohibition infringes its right to free speech (political speech). The UK defense was that the prohibition ensu-res “that the broadcast media (is) not distorted by wealthy interests in favor of a certain political agenda” (i.e. to prevent that money takes control over politics). The ECtHR overruled its earlier leading precedent, and rejected ADI’s complaint. It stated that restriction of political advertising is in line with the Convention if it is done with a “general measure (...) as opposed to prior restraint imposed on an individual act of expression” (in other words case by case censorship). The ECtHR also considered as a factor supporting the prohibition that the “Act was (...) enacted with cross-party support and without any dissenting vote” and also upheld “by judicial bo-dies” in the UK (see the notion of “margin of appreciation” above).

Although this judgment is very recent, it may be an in-dicator of major changes to the legal approach toward political adverts in television, which is currently prohibi-ted in the majority of western European countries, but per-mitted in many central and Eastern European countries. As shown above, based on the COOP, paid political adverti-sing may be lawfully broadcasted from an EU member sta-te allowing it (e.g. Bulgaria) to a member state not allowing it (e.g. the UK or France), because the target country has no jurisdiction over foreign broadcasts. So here is the good news: Animal Defenders can get on air in London if it finds a Bulgarian broadcaster targeting the UK. It is easy to ima-gine, isn’t it: “Hello London! This is the voice of Bulgaria...”

Media Law

The COOP (the "country of origin principle") means that international broad-

casts are subject to the jurisdiction of their home country only.“

44

Media Law- new focus, new area

International Focus Programme 2013-2016: Media Law

New focus, new eraThe Programme was introduced to create awareness about a hot legal topic amongst ELSA Members and in the academic com-

munity they are living in. ELSA always chooses a topic that is internationally relevant, contemporary, versatile and with a strong

academic discussion potential.

Marko Dolenec

Director for Media Law

Programme


The first of August has brought plenty of new things to ELSA; the new topic of the International Focus Programme is one of them. During the International Council Meeting (ICM) in Batumi in Autumn of 2012, the Council has decided that the new

focus for ELSA should be Media Law. During the ICM in Cologne in Spring of 2013, the decision was made that this Focus Programme should last for the upcoming three years. The International Focus Programme was introduced in 1994 and ever since aimed to provide the ELSA Network with a topic that will gather students from more than 40 countries to participate in activities and discussion in a cer-tain area of law. The Programme was introduced to create awareness about a hot legal topic amongst ELSA Members and in the academic community they are living in. ELSA always chooses a topic that is internationally relevant, con-temporary, versatile and with a strong academic discussion potential in order to include law students and young lawy-ers from all our local and national groups into the discussion. This way they can contribute to their legal education with a topic that is very often not (well) represented in their uni-versity curriculum. Also, it is there to prepare them to deal with challenging legal topics in a multicultural environment.

IFP represents a highly important tool for ELSA to crea-te strong academic and institutional partnerships and

to take place at the international stage of legal educa-tion. It also represents a common goal for the whole Net-work; to work together and to achieve results that should be presented in the Final IFP Publication and on the Final IFP Conference after the implementation period expires. Consequently, IFP has been incorporated in the new Stra-tegic Plan of ELSA under the Operational Goal “Professio-nal and academic development of law students and young lawyers” in which, among other sub-goals, you will find: -ELSA shall increase the awareness of the International Fo-cus Programme among members and externals, as well as the general implementation of it

- ELSA shall strive to get a larger number of STEP Traineeships within the IFP area

- ELSA shall develop a strategy to maintain and improve part-nerships of former IFP topics, even after the introduction of the new IFP topic MEDIA LAW is an area of law that regulates activities in all sorts and sizes regarding media communications, such as print media, telecommunications and digital communications and Internet. The main focus of the Media Law IFP Topic, is the role of media in democratic systems and legal standards for the protection of freedom of expression, right to access information and privacy. Besides its main focus, Media Law tries to address and to

synergymagazine 45

deal with a number of different topics that are relevant for media; for example property law issues in different types of me-dia, talent agreements, broadcast licensing, advertising, antit-rust law in media and numerous different but very challenging issues common for activities that are taking place in media.

The term MEDIA includes press, publishing, radio and television broadcasting, multimedia, visual arts, photo-graphy, film, music and internet. Besides that, relevant contemporary issues concerning media law can be reflected.

Very recently, freedom of expression and the right to access information have become interesting and entered into pu-blic focus thanks to several whistleblowers that captured our attention with highly confident and internationally relevant data. It has became obvious that there is a need to regulate these kinds of events in order to ensure state security and stability, but at the same to keep the public informed in all areas of interest.

Freedom of expression was for ages one of the core values of humanity and one of the preconditions to ensure rule of law and democracy. However, since the Internet has become the biggest and most effective source of communication and media, it is necessary to establish limitations of this freedom in order to protect millions of users, especially the most vul-nerable ones. It is obvious that if we want to keep the Internet open and free, we have to clearly decide which conduct is allo-wed and which conduct should be put under criminal liability. Besides imposing criminal liability, Media Law has to create concrete mechanisms to protect everyday users on the Internet and other people who are affected. Media Law has to ensure that freedom of expression is performed well and that users are protected from for example slander in all other sorts of media-newspapers, magazines, TVs, radios, books, film, etc. The phenomena of cyberspace proved to be most challenging in regard to protecting users, especially children, from behavi-or of other anonymous users. The European and International community started to create mechanisms for protecting child-

Media Law- new focus, new area

International Focus Pro-gramme represents a highly important tool for ELSA to create strong academic and

institutional partnerships and to take place at the international stage of legal education. It also represents a common goal for the whole Network.

“ren from cyber bullying, hate speech, grooming, pedophilia and all other possible abuse of children through the Internet. In regard of protecting privacy, we have to mention article 8 of the European convention for the protection of human rights and fundamental freedoms that provides the right to respect private and family life, home and correspondence.

The International and European legal basis is still deve-loping so there is not one unified basis. However, it can be indirectly derived from several international documents laid down by the Council of Europe (European convention for the protection of human rights and fundamental freedoms, article 8 - right to respect private and family life and article 10 – freedom of expression; The Convention on Cybercrime known as Budapest Convention together with its Additional Protocol to the Convention on Cybercrime, concerning the criminalizati-on of acts of a racist and xenophobic nature committed through computer systems) and the European Union (Treaty on European Union with articles 56 – freedom to provide services, 101 – cartels, 102 – abuse of dominant position under rules of com-petition, 167 – culture, Directive 89/552/EEC – “Television without Frontiers” and Directive 2007/65/EC – “Audiovisu-al Media Services”). In addition, it can be indirectly derived from a big amount of cases in the case law of the European Court of Human Rights and the European Court of Justice. It is important to remember that the International Focus Pro-gramme is only a suggestion for the expansion of legal educa-tion, although we want our Members and Officers to take as much from it as possible because it is very relevant, it affects our everyday life and it can be an inexhaustible source of ideas for their events. I am sure that they will do their best to use it in their planning of local, national and international AA and S&C events and in their search for STEP traineeships.

46

Expansion: ELSA Luxembourg

Luxembourg as part of the ELSA Network

Looking forward to become a determining unit in the NetworkDuring the International Council Meeting in Cologne in the Spring of 2013, ELSA Luxembourg

was elected as an Observer of ELSA.

Victor Ferreira

President

ELSA Luxembourg 13/14

The 10th of April 2013, ELSA Lu-xembourg was elected as an Ob-server of ELSA. This event is per-ceived as a historical moment for young law students representing ELSA in Luxembourg.

Luxembourg, which is a small and central Euro-pean country with approximately 525 000 resi-dents, is surrounded by Belgium, France and Germany. Moreover, Luxembourg is not only considered as an im-portant financial place, it also hosts an uncountable amount of European institutions, lawyers and law offices.

The University of Luxembourg was founded in 2003, and is characterized as a dynamic Universi-ty with high ambitions. The University educates a great number of law students, and many of these are in-terested to be a part of an association such as ELSA. ELSA Luxembourg will offer its members the opportu-nity to organise and attend law related events all over Europe and to be a part of an international network.

Due to the fact that the University of Luxembourg is a fairly new University and is still developing, it is also con-cerned with the adaption of student associations. Therefore, ELSA is an organisation for students aiming to develop new

skills and meet other law students all over Europe. Seing the lack of student organisations that are associated with the University of Luxembourg, the ELSA network is considered intensely

needed in Luxembourg. Mainly to give students the opportu-nity to expand their skills and networks besides their studies.

Moreover, there are many advantages associated with Luxembourg joining the ELSA network; seen from a geo-graphical and strategic perspective, Luxembourg is located in the centre of Europe. Additionally, the European Court of Justice and the European Court of Auditors are located in Luxembourg, which provides value and importance for the ELSA network members. This fact could also contribu-te to arrangements of various study visits to Luxembourg. Another important gain of Luxembourg entering the ELSA network, is the fact that many of the biggest European law firms and organizations are situated in Luxembourg.

To conclude, ELSA Luxembourg considers its mem-bership of the ELSA network as a great success. On behalf of all the members of ELSA Luxembourg, we would like to declare that we are very pleased to be part of the ELSA network, and we are willing and looking for-ward to become a determining unit in the network.

Anne-Lise Vandevoir

Secretary General

ELSA Luxembourg 13/14

synergymagazine 47


48

The 1st STEP Traineeship in Asia

Mira Savilaakso

Vice President

STEP

ELSA Finland 12/13

Student Trainee Exchange Programme (STEP) in Pakistan

The 1st STEP Traineeship in AsiaWhile having a traineeship at the Center for Law and Policy (CLP), which is a legal research institute, where she was conducting

research on human rights issues in Pakistan, she got the chance to drink tea with an anti-corruption court judge, with a police

chief, with a high court judge and with an attorney, while at the same time learning more about the Pakistani legal system.

¨Why on earth would you want to go to Pakistan?¨ was the question I received from my bewildered family and friends when I told them that I was selected for a STEP traineeship in

Pakistan. For me, it had been clear from the day I saw the job advertisement for the first STEP traineeship in Asia that I would apply for it. At that time, I was taking specialized courses on Human Rights Law and found the difference in the approach to human rights in the West and in the East truly fascinating. I was already aware of the Western Human Rights Regime, hence, the summer traineeship at the Center for Law and Policy (CLP) in Lahore, Pakistan would offer me a great opportunity to learn more about the eastern sys-tem. At the CLP, which is a legal research institute, I would be conducting research on human rights issues in Pakistan.

When I first arrived in Pakistan, I was quite excited, de-spite the not-so-rosy image that western news agencies present of Pakistan. I was picked up by my boss-to-be, Mr. Asad, and his wife, at the airport in the middle of the night and was brought to my hotel. That made me feel safe, and even after this, I never felt threatened. My contract included a complimentary accommodation, meals and other practi-calities that were taken care of by the CLP. Additionally, the staff of the CLP was always there for me whenever I needed

their help. Naturally, in Pakistan one has to take certain se-curity precautions, such as not walking alone after dark, not talking to strangers and minding the cultural differences, es-pecially concerning the dress code. With the help of the CLP staff and with a hint of common sense and cultural sensiti-vity, I was able to enjoy my stay without any annoyances.

I started my work by introducing myself to Islamic law in general. Mr. Asad gave me a few books that I should read to be able to better understand the sources and the system of Islamic law. I was really intrigued by the books; Islamic law was so much more than what I had thought based on what I had read in newspapers. Western newspapers broadcast that there are no human rights in Islam; but based on what I lear-ned in Pakistan, they are totally wrong. Many International Human Rights principles can also be found in Islamic law. After finishing the books, I started to work with my actual

synergymagazine 49

research topic that was the rights of non-Muslims in Islam. My work was to write legal literature reviews based on articles and books I received from my supervisor, Mr. Asad. By con-ducting the research, I also found an interesting topic for my master’s thesis that I am going to start working on in Autumn.

Besides conducting research, my work also included mee-tings with lawyers working with different branches of law. I got the chance to drink tea with an anti-corruption court judge, with a police chief, with a high court judge and with an attorney, while at the same time learning more about the Pakistani legal system. Sometimes, we also went sightseeing or shopping for the day. For example, one of the world’s lar-gest Mosques is situated in Lahore and we went to admire that along with a historical fort located next to it. Also, the shopping opportunities are great in Lahore. I could buy clo-thes, accessories and even electronics at very reasonable prices.

One of my most interesting experiences was the Islamic holy month of Ramadan, when Muslims fast between sunrise and sunset. Every night there was a dinner party

called the Iftar when Muslims break their fast. Sometimes, I could participate in these dinner parties and enjoy the de-licious local food. Ramadan ends with a celebration called Eid that is comparable with the Christian Christmas. Every Pakistani girl is buying a new dress for Eid and celebrating the event with their families. On Eid, elders also give pre-sents or money to their children. I was fortunate that I had the opportunity to participate in these Islamic traditions

With the help of the staff at the CLP, I was also able to peek into the lives of ordinary Pakistani people and widen my cultural experience. I got to meet their families and friends and was even invited to an engagement party of the sister-in-law of Mr. Asad. In the end, the very best part of my experience was the people I met. I wore off my prejudices by meeting friendly, bright, open minded people and made friendships that will hopefully last forever. That is, in fact, the main objective of the Student Traineeship Exchange Programme: to build mutual understanding of people with different cultural backgrounds.

The 1st STEP Traineeship in Asia

50

The 9th ELSA Istanbul Summer Law School on M&A

"Count me in for next year!"Participants of this Summer Law School had the opportunity to learn about various topics, such as “Due Diligence”,

“Shareholders" Agreement”, “Dispute Resolution in M&A” and “Merger Control in the European Union”.

Summer Law School on Mergers and Acquisitions

Isil Ergec

Vice President for

Seminars and Conferences

ELSA Istanbul 12/13

Getting tired, working hard all year long for an event that is only a week long and with 52 participants? It is to-tally worth it when you get the positi-ve feedback (One of them is written in the subtitle of this article.). Seeing the

smile on the faces and hearing the numerous “thank you very much” upon departure of the participants takes away all the exhaustion. After sharing the experience of a week together, neither the participants nor the Organizing Committee mem-bers thought that a week was enough, nobody wanted to part. The 9th ELSA Istanbul Summer Law School on “Mergers and Acquisitions” (M&A) took place between the 14th and 21st of July 2013 at Istanbul Bilgi University. There were 52 law students and young lawyers from 18 countries par-ticipating, 19 members of the Organizing Committee, who gathered months before to organise this event, and 11 inter-nationally well-known attorneys for M&A, mostly partners of top law firms in Istanbul, that gave lectures and a workshop.There were lectures, all day long, during the week on vari-ous topics such as “Due Diligence”, “Shareholders" Ag-reement”, “Dispute Resolution in M&A” and “Merger Control in the European Union”. However, what the parti-cipants highlighted as the most beneficial was the extensive and fully interactive workshop on “Negotiation” where the participants got the opportunity to negotiate in practice.

Late in the afternoons and for the whole of the Saturday the participants had both cultural tours and free time to discover the city. Hagia Sophia, the Blue Mosque, the Grand Bazaar and the historical main campus of Istanbul University were some of the places they were taken to. On the Friday, we had pooltime, with the breathtaking view of

the Bosphorus, after the morning lectures. Getting into the pool while having a wonderful view was one of the most enjoyable parts of the week. Waterpipe was another local treat, which was truly appreciated by the participants. Also, the fabulous nightlife of the city that never sleeps was the-re all week to call it a day. Especially the night club by the Bosphorus, Reina, fascinated the participants very much. The last night the goodbyes were said during a boat trip at the Bosphorus, the best thing that can be done in Istanbul.

During the Summer Law School the participants had the opportunity to experience the international atmosphere of ELSA. Different cultures, different languages and different life styles differed no more. Meeting with law students and young lawyers from all around Europe and from Pakistan and making international friendship is what made this experience special.

The ELSA Istanbul Law School on M&A is acknowledged as a brand throughout the ELSA network, since it was alrea-dy organised for the ninth time this year. It is one of the oldest Summer Law Schools in ELSA and it’s thanks to this tradition of organizing it that it has become a brand. Tradition brings knowledge but also assigns responsibilities. By knowledge, you have the right to skip the beginners’ phase. However, a pre-ceding tradition also lays the burden of improving the event. Every year it has to be improved, made better than the pre-vious edition. Thanks to our Law School partners, Istanbul Bar Association, Istanbul Bilgi University, Esin Attorney Part-nership—a member firm of Baker&McKenzie International, İşmen Law Firm and ACTECON, we, as the ELSA Istanbul Board of 2012/2013, believe that we carried forward the 8-ye-ar-old tradition entrusted to us by the Turkish ELSA Alumni.

synergymagazine 51

One additional scholarship worth 50% of the tuition fee only for each of the new LLM Programmes - Energy and Natural Resources Law and International Shipping Law

Specialist Scholarship

The Queen Mary’s School of International Arbitration (SIA) and McDer-mott Will & Emery LLP will be offering a joint scholarship to the best Advocate at the 2014 Frankfurt Investment Arbitration to study LLM in Comparative and International Dispute Resolution

The Centre for Commercial Law Studies (part of the School of Law) and the School of Economics and Finance Joint Programmes for September 2014

LLM in Law and Economics – Three partial scholarships worth 50 per cent of the tuition fee each to Home/EU and overseas full time candidates

MSc Law and Finance - Four partial scholarships worth one third of the tuition fee each to Home/EU and overseas full time candidates

LLM in Paris Programme January 2014 – open to both full and part time applicants

1 partial scholarship worth £7,500 for an EFB (Paris Bar) student1 partial scholarship worth £5,000 for all other applicants

Full details will be made available here towards the end of September

www.law.qmul.ac.uk/postgraduate/funding

Queen Mary will be offering over £285,000 worth of scholarships to full-time students to follow PG Taught Programmes in 2014

LLM Programme (London) for September 2014

12 full tuition fee only scholarships (6 for Home/EU students, 6 for over-seas students) covering the following programmes:

• General LLM• LLM in Banking and Finance Law• LLM in Commercial and Corporate Law• LLM in Comparative and International Dispute Resolution• LLM in Competition Law• LLM in Computer and Communications Law• LLM in Economic Regulation• LLM in Energy and Natural Resources Law• LLM in Environmental Law• LLM in European Law• LLM in Human Rights Law• LLM in Insurance Law• LLM in Intellectual Property Law• LLM in International Business Law• LLM in International Shipping Law• LLM in Legal Theory• LLM in Media Law• LLM in Medical Law• LLM in Public International Law• LLM in Public Law• LLM in Tax Law

Professor MaherDabbahCompetition Law and Policy

Engage with academics shaping policy…and become a better lawyer in the process

Professor MalgosiaFitzmauriceEnvironment andInternational Law

Professor ValsamisMitsilegas EU Law, Immigration Lawand Money Laundering

Professor Geraldinevan Bueren QCInternational HumanRights, Childrens’ Rights

Professor LoukasMistelisADR, Arbitration andCommercial Law

Professor PhilipRawlingsCommercial andInsurance Law

Professor DuncanMatthewsPatent Law, Global Politicsof Intellectual Property

Professor RosaLastraInternational Financial and Monetary Law

In central LondonGeneral LLM + 20 Specialist LLMs• Taught Masters in Law,

Economics and Finance• Research Degrees • Distance Learning

In central ParisLLM in Paris Programme –• 4 commercially focused LLMs

Additional benefits• No extra cost – Critical Thinking

and Writing in Law programme –to improve writing and research in law skills

• Bespoke careers and networking events

• Unique internship opportunities • Generous funding available for

PG Taught and Masters courses www.law.qmul.ac.uk/postgraduate

SynErgymagazine52

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