Thursday, 15 September 2016

Thursday, 5 June 2014

Should Environmental Activists Be Considered Pirates?

I consider this question in the context of the Ninth Circuit's decision last year in Institute of Cetacean Research v Sea Shepherd Conservation Society.

The article was just published in the Lloyd's Maritime and Commercial Law Quarterly and can be accessed here. 

img credit:

Monday, 25 March 2013

Finality Confirmed, Constitutionality Upheld: Major Victory for International Arbitration Community in Australia

This is my latest article co-authored with Matthew Lee, published on the Kluwer Arbitration Blog.

Here's a sneak peak:

Last Wednesday, the international arbitration community in Australia won a significant victory. Indeed, in TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia [2013] HCA 5 (13 March 2013), S178/2012, the Australian High Court (“Court”) dismissed a challenge to the constitutionality of the International Arbitration Act 1974 (Cth) (“the Act”), and thus confirmed Australia’s appeal as a hub of international arbitration in the Asia-Pacific. The decision has important implications not only because it confirms the finality of international arbitral awards, but also because it clarifies the demarcation between judicial power and arbitral authority under Australian law. As we argue in this post, this is a welcome move, particularly in light of the Australian Government’s resolution to no longer include investor-state dispute settlement provisions in BITs and FTAs, a decision which sent shockwaves throughout the international arbitration community and placed a question mark on Australia’s commitment to its growing international arbitration industry.

Read the entire article on the Kluwer Arbitration Blog here:

Monday, 17 September 2012

Why lawyers make better Presidents

Full disclosure: I'm a lawyer.   Further disclosure: I represent corporations. So this is a tough one.   But after hearing Clint Eastwood's speech at the 2012 Republican Convention in Tampa, I couldn't help but to write this to defend my trade.  

" See, I never thought it was a good idea for attorneys to [be] the president"I think it is maybe time - what do you think - for maybe a businessman. How about that?" said Clint Eastwood that night.

In saying that, Clint made my day, for it justified me putting to paper something which I had already been planning to write for quite some time.   That is, why do lawyers make better Presidents than businessmen ever could?

The facts first. Twenty-five out of forty-four US Presidents came from a background in law.   Thomas Jefferson, one of the founding fathers of the United States, as well as the main author of the Declaration of Independence, was a lawyer for about five years before entering politics.   Franklin Roosevelt, also a lawyer, was crucial in helping the US navigate through the Great Depression and World War II.   Most recently, President Barack Obama (yes, also a lawyer) ended the War in Iraq, won a Nobel Peace Prize, and redefined America's role in the world.  

Lawyers arguably have a number of advantages over businessmen when it comes to politics.   First, lawyers are creatures of advocacy.   A lawyer's professional life revolves around advocating specific positions on behalf of its clients, similar to a politician's advocacy of a constituent's interests.   After all, law is an extension of the democratic process.   Lawyers are trained in navigating through legislation and policy, and this gives the legal profession a head start in understanding how society works, which in turn helps them serve it better.

Lawyers are also fundamentally bound by ethical duties to the client, the profession and the public at large. No such equivalent exists in the world of business. The legal profession is a principled one, firmly rooted in the principles of justice, freedom and ethics.

Granted there may be crooks, like in any trade.   "Kill all the lawyers" wrote Shakespeare inHenry VI.   Written in praise of lawyers as a profession that respects the rule of law, the line has been misinterpreted ever since to convey derogatory depictions of lawyers.  

Lawyers and businessmen have different objectives.   Lawyers seek to maximize a client's freedom; businessmen, shareholder wealth.   (To be sure, some lawyers help businessmen do the latter and there's nothing wrong with that as long as everyone plays by the rules.) But arguably, the desire to get the right answer permitted by law is a better qualification for government than the greed to get-it-all at any cost.   As the English playwright W. Somerset Maugham once put it, "any society that values wealth above freedom will lose its freedom, and will ultimately lose its wealth as well."

Businessmen are mostly concerned with maximizing shareholder value. As Milton Friedman, a leading economist at the University of Chicago, once put it, "the only social responsibility of business is to increase profits." Granted, the corporate social responsibility movement is trying to change that and instill a greater sense of responsibility in the commercial world.   Businesses have the ability to do good. And some even do great. They create jobs and invest in new technologies that make our lives easier.

But a country cannot be run like a corporation.   Business cannot become synonymous for society.   Society's core is not comprised of shareholders, but people. As Elizabeth Warren passionately argued at the Democratic Convention in Charlotte, " people have hearts.  They have kids.  They get jobs.  They get sick.  They cry, they dance.  They live, they love, and they die, and that matters." 

Lawyers, as agents of the democratic will, are aptly suited to govern the country's political machinery. In 1774, John Adams, the second President of the United States, famously proclaimed that ours is "a government of laws, and not men."  Men barter for the lowest price.  Lawyers argue for the greatest ideals.

At the end of the day, though, this election will likely be decided on business principles: not necessarily who has the best background, but who has the biggest bankroll.

Friday, 14 September 2012

When Clean Energy Is Not Enough

The world's appetite for clean energy has never been so great.  Global warming, with its shadow of impending doom, is largely to blame for this obsession with alternative energy.  And rightly so.   But the world should not miss the forest for the trees in its glorious pursuit of (green) happiness.  Though clean energy is a commendable solution to meet our growing demand for energy, other environmental issues should not be sacrificed in the process.

And that is essentially what a federal court in Brazil avoided last week when it suspended the construction of potentially the world's third largest hydroelectric dam (the "Bel Monte dam") for failure to consult with indigenous communities in the Amazon region.  The federal court's decision stated that the Brazilian Congress acted illegally in giving the green light for the project without consulting with indigenous tribes living in the area.  As this renders the project's environmental license invalid, the consortium conducting the project is liable to a daily fine of 500,000 Brazilian reais (US$247,500) if construction continues.

Brazil has one of the world's most diversified energy matrices. According to Brazilian government data, 45.3% of its energy is generated from renewable sources, such as water, biomass, ethanol, wind and solar sources.  Hydroelectric power plants, such as the would-be Bel Monte dam, generate over 75% of the electricity used in Brazil.   As the Amazon region depends heavily on fossil fuels for energy, the Brazilian government is adamant on pressing ahead with the Bel Monte project to make the region more self-sufficient.

Brazil is also home to almost half a million indigenous people, whose ancestors pre-date Brazil's European discovery by the Portuguese in 1500.  If construction of the dam goes ahead, approximately 500 square kilometers of land along the Xingu River in the Amazon would be flooded.  According to official government estimates, this would displace some 16,000 people, with environmentalists putting the number much higher at 40,000.  The project may also adversely affect large areas of the rainforest and fish stocks upon which indigenous people depend on.

In his ruling, the judge noted the consortium's failure to follow an international law known as the International Labor Organization Convention No. 169 ("the ILO Convention"), ratified by Brazil in 2002, which demands consultations of tribal and indigenous people, before work can commence in areas that may affect them.  The Convention seeks to protect tribal peoples' right to, amongst other things, own the land they live on and to make decisions about projects that may ultimately have an adverse impact on their lives.

The court's decision comes as a surprise given that Brazil's Solicitor-General recently signed a directive that opens up all indigenous lands to mineral, dams, roads, military bases and other developments of "national interest' without the need to consult with or address concerns of indigenous people.  Not only is the directive in clear violation of the ILO Convention, but it has also been described as "unconstitutional" by Brazil's Public Prosecutor's Office.

Ultimately, the court's decision may do little to prevent the construction of the Bel Monte dam.  The consortium may appeal and win.  Alternatively, the Brazilian Congress may expedite consultations with indigenous tribes to satisfy procedural requirements.  The decision highlights inherent tensions in environmental policies that seek to promote clean energy to sustain economic growth on one hand, and sustainable development on the other. Decision-makers are caught in the middle by having to engage in a balancing act that may not always produce the best results, nor protect the most valuable interests.
"The fundamental question that Brazilians must re-examine is not merely how to balance different stakeholder interests, but how do we deal with our growing energy consumption" says Kamila Guimaraes De Moraes, a Brazilian environmental lawyer and Capes Foundation researcher at The Federal University of Santa Catarina in Brazil.

The development of clean forms of energy is a worthwhile pursuit as the world struggles to tame global warming.  But it may not have the impact we so eagerly anticipate if it is not accompanied by a more fundamental -- cultural -- change. That is, recalibrating our hunger for energy writ-large.  Any other solution is likely to merely treat the symptoms of a problem that can arguably only be resolved by an etiological solution.  Says Ms. Guimaraes: "We must therefore reassess our way of life."

Originally published on OpEdNews

Sunday, 29 April 2012

The Banker Beggar's Loss

The Banker Beggar’s Loss

The beggar asked the banker,
Sir! Can you spare a dime or two,
The banker ignored the beggar,
So the beggar ignored him too.

The next day the beggar refined,
His fine begging-a-beggar-begot ,
And so he asked, once more, the banker:
Sir may you lend me a dime or two.
Those days were bright and sunny,
And so the banker lent the beggar some change,
Zero interest, the banker said.
“No interest?”
“Yes, I am not interested in you.”

The days went by and the beggar,
With his refined verbal abilities,
Amassed such a big fortune,
That good fortune became his deed.

When the market crashed like a wave
Crashing on a helpless angry rock,
The beggar, now rich, looked at the banker,
And asked him if he’d like to sell his stock.
The banker sold for a loss, all his shares -
And all his stock,
In return for all the beggar’s fortune
(which he kept in his holeless socks).

The beggar then tried selling the stock,
To the people in the streets,
The same people he was begging from
In the early mornings of last week!

But in a tragic turn of events,
The market emerged from defeat,
And the beggar, poor beggar,
Now had worthless stock,
And no socks to warm his feet.

The beggar asked the banker,
Sir! Can you spare a dime or two,
The banker ignored the beggar,
So the beggar ignored him too.

Tuesday, 12 July 2011

A life of Capital Letters

In the beginning there was something,

Which expired in the end,

An illusion? A trick? A mirage?

A broken toy which you cannot mend.

A sentence starts with a Capital letter

A big, majestic imposter!

Full of character!

But ends timidly,


With a full stop;

Perhaps still (a) character?

But unworthy of a letter.

Live life like an open,

Open-ended sentence

No full stops.

Live big,


Live life like a Capital Letter.