Aaron Allan, Senior Partner of the Environmental & Energy Department at Glaser Weil speaks on saving clients during lawsuits.

“Managing environmental risks and having appropriate insurance is more important than ever given the high stakes that face our clients,” he explains.

“We have been successful not only in identifying risks for clients, but also in obtaining new insurance and maximising the value of historic policies when confronted with new or potential liabilities. “While I pride myself on my ability to win lawsuits, the best lawsuit for a client is the one that never happens.”

Below he speaks more on energy law and how it is impacting his clients.

 

How have you seen insurance coverage change in relation to energy law, with the increasing environmental concerns?

Over the past 10-15 years, there generally has been a reduction in the availability of insurance to cover environmental issues (including shorter terms, and higher self-insured retentions). Environmental disasters, such as the offshore spill in Santa Barbara and the water quality problems in Flint, Michigan, coupled with more aggressive government regulation (prior to 2017), have also led insurance companies to demand higher premiums and deductibles, and to refuse types of coverage that used to be routinely available, such as "cost-cap" environmental coverage, which protects against cost overruns for the remediation of polluted sites. In the energy sector, whether in new shale plays or traditional resource plays, there are a limited number of insurers willing to entertain environmental risks. Those writing policies have been successful, but many insurers appear to be wary of the technology and appear not yet ready to correctly underwrite the risk. The tide may be turning, however, because of several factors: (1) a trend down in oil prices has led to decreased production activities and a reduction in the number of claims, (2) increased regulation and new technologies have led to improved safety of operations; and (3) recent large spills, such as Deepwater Horizon, have inspired industry wide efforts to better protect workers, property and natural environments, of which insurance companies have taken notice.

 

Are there any rumored changes expected to occur, which you think may deeply affect your clients?

The recent prolonged downturn in energy prices, which has led to reduced demand for insurance among energy providers, coupled with anticipated relaxed enforcement efforts from the current administration in Washington D.C., is expected to put pressure on insurance carriers to loosen underwriting standards and expand the terms and conditions under which they offer coverage to energy companies. The rise in alternative energy companies and sources is also expected to generate incentives for insurance carriers to come up with creative new products to insure against financial loss in this sector, which should also benefit more traditional energy providers.

 

What do you think is key in ensuring you obtain full (or the best) coverage for your clients during lawsuits?

First, while it may seem obvious, it's important to carefully read every term and condition of the policy. Second, in all dealings, I have found it extremely helpful to act reasonably and maintain credibility with the insurance carrier representatives and counsel. Finally, the case law affecting coverage is constantly evolving, particularly here in California, and it's imperative to keep up to date with the most recent decisions that may affect your clients on coverage issues.

 

What would you claim are three important factors to address during environmental due diligence?

The most important aspect of performing environmental due diligence is completeness. For the deals that I have been involved in handling, there has been simply too much at stake to think about cutting corners. Second, it's important to understand the limitations of a Phase I Environmental Site Assessment. A Phase I should only be used only as a starting point for evaluating the need for other tools to complete due diligence. Third, you must gain a complete understanding of the target company's operations, both present and historical, which often requires interviews with both current and former officers and employees. Without that understanding, there is too much of a risk of missing indicators for both on-site and off-site liabilities.

Aaron Allan | Partner
10250 Constellation Blvd., 19th Floor, Los Angeles, CA 90067
Main: 310.553.3000 | Direct: 310.282.6279 | Fax: 310.785.3579
E-Mail: aallan@glaserweil.com | www.glaserweil.com

 

Aaron P. Allan, a Senior Partner in Glaser Weil’s Environmental & Energy Department, has for over twenty-five years represented a diverse range of business entities on significant issues involving energy, environmental, consumer products, insurance coverage, toxic tort and real property issues. He has published and presented on significant topics such as groundwater management, environmental lender liability, and California's Prop. 65, and is currently working on an article discussing California's cap and trade programme to reduce greenhouse gas emissions. He has successfully represented oil and gas companies, solar providers, water utilities, insurance companies, hotels, banks, and other business entities on such matters.

Glaser Weil, based in Los Angeles, is one of the country’s premier full-service law firms. Advising a roster of diverse, selective clients — from start-ups and large global corporations to high-profile entertainers and other well-known individuals — Glaser Weil represents clients’ interests with an unprecedented level of dedication and commitment.

 

 

 

One of the things that makes Vincent Theobald-Vega different from a lot of other experts is his breadth of experience. Expert witnesses tend to be specialists in one, narrow area, but Vincent has worked in: agriculture, forestry, construction, asbestos, fire issues, chemical issues, laboratories, even genetically modified organisms.

Vincent says: “My huge range of expertise allows me to lift tools and techniques from one discipline and work with them in another.

This makes life so much simpler when trying to find solutions to problems, as you can lift certain aspects and apply them to another situation.  That is what health and safety is all about, finding solutions to problems.”

Below, Vincent touches on how his field has changed over the years and working as an expert.

 

How do you keep on top of all these different areas you specialise in?

Read a whole bunch of stuff, talk to an awful lot of people and never, ever assume you got the answer. You must constantly research things and for every single case you go back to basics and search for the answer. You can’t have the mindset that: “This is the answer, as it was the answer last week” because things change.

 

How would you say health and safety has changed over the years of experience working in the field?

Well I started nearly 30 years ago so it's changed quite a lot. The accident rate in general has halved. Principally, this is because people are now focusing on the health and safety side of things; there has been an increased focus on ‘planning’ and management. The other big change we are seeing, is that industries are finally focusing on the ‘health’ aspect of health and safety. Health is a big issue; there has been a significant increase of serious illnesses from health issues.

 

How would you say that affects the cases that you see in regard to health?

Health issues are not filtering through to disputes much yet; certainly at the moment, most of the cases are still very traditional, either safety or asbestos related. Nonetheless, stress has recently been published as number two on health-related agendas and so it will not be long before we start seeing cases related to the issue. The Walker v Northumberland County Council case was not so long ago, and the world is changing quite quickly.

 

What are the common aspects of your role as an expert witness that the legal profession may underestimate during a case?

As expected, solicitors concentrate on legal definitions and don’t have the technical competency to always understand the on-site issues. As a result, you get an awful lot of important facts being missed as they have not undergone an adequate investigation of the facts; of course, I am not undermining their intelligence, but they can’t always decipher which parts of the huge bundle of facts matter.

I often get handed this huge bundle of work with no differentiation of what matters to the case. I sympathise with the fact that you can't be an expert in everything, but the lack of investigative approach certainly does cause more problems.

Another issue is how practicable decisions and conclusions change day by day. You can attend a case which is drawn to a specific conclusion, but a similar case the following day could reach a different verdict.

Lawyers often refer to past verdicts and cases to demonstrate their point, but in this instance, it does not count because the boards easily move on; the technology has already changed, the practice is different and thus sparks a new outcome. Lawyers may have a feeling of “the story” their case will follow, but it will not go anywhere without the evidence, and that is where I come in. It can be very difficult, but my role is turning mountains of technical jargon into plain English, to produce a clear story that helps people understand the case that they're looking at and how it fits into the wider picture.

 

How do you strengthen your case / or work around the issue, when an Expert on the opposition may have an alternate conclusion?

If you're looking at any kind of court case or pre-court case between two safety experts, you will get a minimum of three opinions as everything is based on judgement and experience.

In terms of building your “story” you need to look at that breadth. In my experience, an awful lot of experts actually have a fairly narrow base area of expertise, so they might recognise everything there is to know about the widget machine, but not necessarily about a factory in which the widget machine works.

What I do is devise a story around all the evidence, and all the possible outcomes and arguments, as this story makes plausible sense with all these different opinions.

Therefore, when you have difference in opinion you can refer to this database of outcomes and differentiate between weak and strong arguments.

In instances where a member of the public – technically classified as a trespasser - was injured on a construction site, the officer expert may state: “We will not fight health and safety for a person that shouldn't be there.”

But when you look at the level of protection that they were providing, it wasn't good enough for fire brigade or the police officers who may need to come on site, so therefore, their general duty of care had not been fulfilled even if the person was a trespasser. All in all, you must take that step back and look at the wider, bigger picture.

 

So, what was the most challenging part when you first instructed to the Crown Court?

When I had my first Crown Court case I was up against inspectors, some of which I knew.

Because I used to be an inspector, I know an awful lot on how they should behave, and it was very intimidating being on the other side. What you have to remember is that you are really there for the evidence. It doesn't really matter how intimidating it is with all these people claiming the opposite. You must focus on what the Court needs; and it needs to understand the story of the incident.

From my point of view an expert ought to explain the evidence in plain English to a barrister who then gives the story to the jury. It is important to get things into plain, simple, straightforward terms so that people can make sense of it, because I'm not there to fight.

 

Are there any changes you are hoping to see, or are seeing, in your industry that will benefit clients?

Technology has made a huge impact and has changed management. For example, you have a mobile phone with an app allowing you can keep records, preferably photographs of what you're doing as you go along and you can demonstrate that you've done the thinking, and demonstrate you have done the risk assessments.

From previously relying on statements, we now have an electronic footprint, including videos, photos and a range of evidence the Court will accept.

You can now forensically build a better picture of the actual incident and demonstrate the state of knowledge at the time of the incident. This will help people to think in advance, in order to avoid any accidents in the first place.

 

Vincent Theobald-Vega
FIIRSM, FRSPH, CMIOSH, MISTR, EurOSHM, BSc, MSc, PgDip, Cert Ed (LLS)
Partner / Director
Safety 4 HEd LLP
T   07940 564 889
E   vincent@safety4hed.co.uk
W  www.safety4hed.co.uk

 

Vincent Theobald-Vega joined the HSE in 1989, upon completing his BSc and MSc. He was based in “Area Offices”, assigned to agriculture and construction teams. During his 10 years there he was a prosecutor presenting his own cases, and involved in landmark cases. Later, he moved onto Newcastle University, where he was Head of Safety for 10 years. In 2012 he decided to launch Safety4HEd and left university, although he still lectures at Northumbria.

Safety 4 HEd is an LLP (a Limited Liability Partnership) that provides specialist Health and Safety consultancy services, principally for the University and Research sectors, but also deals with any companies with a real challenge (from technology, or because of work in a specialised sector). Vincent Theobald-Vega is an experienced, qualified and vetted health and safety professional, and is the main health and safety consultant with the partnership.

Unlike physical conditions, neurodevelopmental disorders could take a lifetime to notice and diagnose. We speak with Sharon Beattie, who has a vast amount of experience in psychology. Below, she discusses how neurodevelopment disorders tie into employment law and family law, as well as what type of expert courts ought to seek.

 

What are common cases you are instructed on as an expert witness, regarding autism spectrum disorders (ASD) and cognitive functioning conditions?

I am generally instructed on cases that are assessing neurodevelopmental and neurodiversity difficulties, particularly in employment tribunal cases and family court situations. These two areas reflect my background experience in policing, child protection and safeguarding as working as a Psychologist.  Employment cases generally involve the assessment of those individuals whose behaviour in the workplace reflects inconsistencies between what is expected of them and their performance. In family cases, these are generally child protection cases which may require psychologists to evaluate parents’ functional capacities to meet all of the needs of their child(ren) throughout the period of being younger than the legal age of adulthood. Public and private family proceedings tend to have differing perspectives, but given my expertise I am generally asked to comment upon an individual's capacity for change within the child’s timeframe and asked to evaluate single or multiple issues, but I generally focus on those cases that require an assessment of neuro-developmental conditions (e.g. ASD).

 

What do you mean by neurodevelopment conditions?

Neurodevelopmental disorders are characterised by developmental deficits that usually show up early in a child’s development, many times before the child enters primary school and can run throughout the individual’s lifetime. These brain function deficits can affect a person’s emotions, memory, ability to learn, socialise and maintain self-control. They can be limited in nature, for instance to learning, or the deficits can be global and affect intelligence or social skills overall.

The category of neurodevelopmental disorders, includes: attention deficit hyperactivity disorder (ADHD), autism spectrum disorders (ASD), communication disorders, intellectual developmental disorder, motor disorders, and specific learning disorders. It’s not unusual for these disorders to co-exist.

While there are no known cures for neurodevelopmental disorders, medication and therapy treatments do exist that can help a child or adult. At the neurodevelopment clinic, our goal is to help children, adults and their families learn about neurodevelopmental disorders and to offer them support in managing their or their child’s neurodevelopmental disorder symptoms. We have in-depth, trusted, up-to-date information on the diagnosis, causes and treatment of neurodevelopmental disorders in children and adults.

 

Why is important to understand for family court cases?

Many people with neurodevelopment disorders aren’t diagnosed (if at all) until they are adults. Individuals with a neurodevelopmental disorder have their own personalities and life experiences, and it affects people in different ways.

Raising a psychologically healthy child involves complex emotional interaction between parents and offspring. Parenting also requires the ability to avoid behaviours that might be damaging to a child's well-being. Individuals with neurodevelopmental disorders such as ASD, who may eventually have children of their own, may face particular challenges in satisfying these demands due to their difficulties in understanding and relating to others on an emotional level. Their skills as parents may also be hampered by other ASD-typical characteristics, such as need for routine and hypersensitivity to certain sensory stimuli. In child protection cases, it is important that professionals understand the difficulties that the parent may experience and have an understanding of the disorder and ensure that the appropriate support is put in place for these parents.

 

Why is neurodiversity understanding important for the civil courts?

Neurodiversity within the workplace is generally referred to those individuals who have dyslexia, dyspraxia, dyscalculia, ADD/ADHD and ASD, but more commonly they have a specific learning difficulty. It is important to understand these, as sometimes cases which go to an employment tribunal, the employer may not realise that the difficulties that an individual is experiencing is related to particular learning difficulties. An assessment should attempt to provide a reason for the difficulties people are experiencing and for them and their employer to take the appropriate action. A thorough assessment should include an assessment of their working environment, in addition to recommended adjustments that could support the employee with their difficulties. As part of the service I deliver, I conduct an open-ended interview with the employee about their current job role. Then a workplace needs assessment report is compiled. I also deliver support training in order to create tailored interventions which can be used to help improve employee’s skills, such as reading, writing and memory. Advice and training can be provided in the following areas:

• Reading
• Writing & Typing
• Spelling
• Organisation & Prioritisation
• Note Taking
• Speaking
• Time Management
• Listening & Concentrating
• E-mails
• Working Environment
• Career Goals
• Confidence
• Resilience development

What should the courts look for in an expert in this specialty?

There is no definitive legal definition of an expert. It is a matter for the court to rule upon in each case.  However, the Legal Guidance (prepared by the Crown Prosecution Service for England and Wales) defines an expert as: "A person whose evidence is intended to be tendered before a court and who has relevant skill or knowledge achieved through research, experience or professional application within a specific field sufficient to entitle them to give evidence of their opinion and upon which the court may require independent, impartial assistance" (Crown Prosecution Service, 2010, para. 36.2).

The legal profession, if instructing experts, should refer to the new expert witness guidance developed by the British Psychological Society, which as part of the Expert Witness Advisory Group I helped to develop. In the first instance, psychologists must be competent in respect of the knowledge required by the Court, and expertise within a specialised field, may include:

• Qualifications and/or degree(s) in the areas(s) in question;
• A number of years of post-doctoral/post-qualification experience;
• Academic, professional and scientific publications in relevant areas;
• Demonstrations of professional practice, competence, specialist knowledge and expertise with a bearing upon the issues in the case; and
• Current experience in applying psychology in the area of claimed expertise. For example, instructing a psychologist to assess adults in the work would requires a specific grounding in workplace issues, adult learning and performance management processes. Likewise instructing a psychologist to assess neurodevelopment issues of parents in child protection cases, would require experience of working with adults in areas including ASD, ADHD and other specific learning difficulties and have an understanding of the child protection and family court processes.

 

In order to provide services as an expert witness, psychologists must ensure that they have appropriate indemnity insurance, and where appropriate, that they meet any necessary safeguarding standards that apply within the jurisdiction they are working within. They should also ensure that they are qualified not only in content, but also qualified in process. Process refers to the act of giving evidence in a legal forum, either orally or in written form. Expert witnesses are not expected to be lawyers, but they are expected to understand the legal processes and how expert and professional witnesses sit within these. They are expected to be skilled in the delivery of evidence. It is recommended that psychologists should only be appointed who have specific experience and training in the area.

Sharon Beattie CPysch CSci AFBPsS
Director
SB Consultancy
e: sharon.beattie@sbconsultancy.co
t: +44 (0) 7795607250

 

Sharon is an experienced psychologist with unique skills in public protection (including child protection), psychological assessments, expert witness work and psychotherapy. She specialises in assessments of children, adolescents, adults and families and provide expertise in the diagnosis of neurodevelopmental disorders including ASD, Dyslexia, Dyspraxia, Dyscalculia and ADHD and has over 20 years’ experience in the field of psychological assessment. She has particular expertise in providing evidence in legal proceedings (e.g. employment tribunals) in relation to adults with specific performance difficulties at work. Given her background in policing and child protection, she works extensively with the family courts as an expert witness and provides training for psychologists in this area. She also holds qualifications in expert witness report writing, courtroom skills and cross examination techniques.

Sharon runs her own business (SB Consultancy) which specialises in neurodiversity assessment and training and expert witness work . SB Consultancy and its associates provide specialist services across all age ranges affected by ASD, Dyslexia, Dyspraxia, Dyscalculia, AD(H)D and other neurological / developmental differences. The organisation’s services are aimed at unlocking potential, raising the awareness of these conditions and providing support to enhance lives whether it is within the workplace, school setting or at home.

If you require expert witness psychological expertise, you can contact Sharon on 07795607250 and at sharon.beattie@sbconsultancy.co

With people criticising Stephen Paddock being labelled as a 'lone wolf' and other criminals being stated as 'mentally unwell' instead of 'terrorists', Lawyer Monthly asks how mental health ties into violent crimes and if a criminal should just be labelled as a criminal, rather than on their mental well-being.

It is a tough topic to address, as mental health in itself is more complex than we often perceive it to be.

As Clinical Psychologist and Cognitive Behavioural Psychotherapist, Bernard Kat explains, when trying to determine if being mentally unfit justifies the act of terrorism: “It depends what side you are on; what one claims a martyr, another thinks a psychopath.”

That aside, we can delve deeper into the topic by considering criminal responsibility in line with mental illness.

“Criminal responsibility is no longer black and white (if it ever was); various laws now discriminate various levels of responsibility and in any case responsibility is not a characteristic of a person, it is attributed to them”, explains Bernard.

“Mental illness is a metaphor, using physical illness as a reference point. Most disorders are categorised by reference to what one can see and what the ill person says. Only very few [mental illnesses] are defined by a known underlying process - dementia and PTSD are examples.

“So using a metaphor to argue about the extent to which one should be attributing blame to someone, is bound to be a messy business. There are alternatives to the mental illness metaphor but currently they are not acceptable because they mean recognising that crime is not an individual phenomenon but an individual's expression of social, cultural and economic inequalities. Oversimplifying somewhat, currently, we prefer to believe that there are deviants, rather than consider the nature and origins of deviancy.”

And even though people can be quick to say ‘mental illness is a bad excuse’, we must recognise that the law is constantly adapting to new discoveries and its place in society; we cannot underestimate the knowledge of the medical industry, and as Julian Heiss, a leading criminal law expert eloquently puts it: “Throughout my career as defence counsel I have seen far too many people with mental illnesses become entangled with the criminal justice system due to lack, or failure, of treatment. Mental illness can be an explanation, it is however not an excuse.”

The next few articles delves deeper into this topic with Julian, using his expertise in Criminal Law from Germany; we also hear from Tonya Krause-Phelan, a Professor and Auxiliary Dean at Western Michigan University Cooley Law School, who discusses this from an American point of view, and from Mary Prior QC, touching on English Law and mental health.

 

Does the American Criminal Justice System Need Reforming to Address Terrorists?

 One of the founding principles of the American criminal justice system was the notion that punishment should be handed out to those individuals who violate the law. Historically, however, our justice system did not punish offenders who were insane because those individuals were not believed to have exercised their own free will. Instead, it was believed their criminal conducts were caused by a disease or defects of their mind, and therefore, were not deemed to be morally accountable for their actions.

Over time, our justice system shifted its focus from the moral accountability of the offender to the rights of victims. Michigan, for example, amended its state constitution to implement the Crime Victim Rights Act. This act provides several procedural rights to victims such as being notified of court dates regarding their case, to be consulted regarding any plea bargains offered to the defendant, and to give the court a victim impact statement. With the system’s focus shifting to victims, the attitudes about punishment for individuals suffering from mental illness dramatically changed.

One possible reason for this attitudinal shift is that when the public witnesses not guilty by reason of insanity verdicts, those verdicts have been rendered in gruesome, high-profile cases. However, many mental health professionals assert that only a small percentage of people who are mentally ill commit violent crime. Nonetheless, people fear those violent crimes. Many individuals believe it is easy to lie about being insane. And, many are under the mistaken notion that a defendant found not guilty by reason of insanity is released back into to the community.

In several state’s insanity is actually referred to as lack of criminal responsibility. It is an affirmative defence which means the defendant must raise the defence and give the prosecutor notice of the defence prior to trial. Insanity focuses on the person’s state of mind at the time the crime was committed. Interestingly, a jury must determine beyond a reasonable doubt that the defendant actually committed the crime charged by the prosecutor. Once that determination is made, the jury must determine if the defendant was insane at the time he committed the offence. To be legally insane, the defendant must prove he was mentally ill or suffers a significant, sub-average intellectual function. Then, the defendant must prove that, as a result of mental illness or intellectual disability, he could not understand the wrongfulness of his conduct, or that he was unable to conform his conduct to the requirements of the law.

Insanity, contrary to popular belief, is a very difficult defence to raise and an even more difficult defence to prove. First, although used as a legal defence, insanity is actually a medical diagnosis. To even be eligible to raise the defence, the defendant must request and submit to a psychiatric examination to determine his competency to stand trial, whether he suffers from a diagnosable mental illness, and whether he was acting under that mental illness at the time of the offence. Under current law, the defendant could conceivably be subjected two more examinations: an independent exam at the defence request and one at the request of the prosecution. Although the public thinks it is easy for anyone to fake being mentally ill, the experts are fully capable of detecting imposters from the truly insane.

After thorough examinations, the psychiatrist or psychologist prepares a report and conclusion that is made available to the lawyers and the court. Even if there are three separate examinations, and all three conclude that the defendant meets the statutory definition of insanity, the prosecutor may still proceed to trial and argue that the defendant was not insane when he committed the crime.

So, it comes back to public perception. In some states, jurors cannot be informed that if the defendant is found not guilty by reason of insanity, that the defendant is not automatically released into the community. Instead, the defendant is transferred to the probate court system where he will be committed to a secured mental health facility where he could be held for decades. For example, John Hinkley, the man who attempted to assassinate President Ronald Regan, was found not guilty by reason of insanity and he spent decades in a secure mental health facility.

In light of recent events where violent acts have been committed against a targeted group of people, the public is now wondering the differences between a terrorist and someone who is insane. States have created various definitions for terrorists. In general, a terrorist is defined as “any person who engages or is about to engage in an act of terrorism.” Terrorism is defined as a willful and deliberate act that is 1) an act that is a violent felony; 2) an act that the person knows or has reason to know is dangerous to human life; and, 3) an act that is intended to intimidate or coerce a civilian population or influence or affect the conduct of government through intimidation or coercion.

Being a terrorist, by definition, is a person who committed a specific type of violent crime with a specific purpose. A ‘terrorist’ is not a condition. By contrast, an insane person may have committed a crime, but committed the crime as a result of a medically diagnosed condition. Even so, someone charged with terrorism could, in fact, raise the insanity defence if he meets the medical and legal criteria. At the end of the day, whether the insanity defence fosters justice or impedes it is a matter of perspective regarding who, and under what circumstances our system punishes offenders.

Tonya Krause-Phelan is a Professor and Auxiliary Dean at Western Michigan University Cooley Law School, where she teaches Criminal Law, Criminal Procedure, Defending Battered Women, Criminal Sentencing, and Ethics in Criminal Cases. Before joining WMU-Cooley, Professor Krause-Phelan worked as both a private criminal defence practitioner and as an assistant public defender. She has lectured on a variety of criminal law topics, including "Junk Science in the Courtroom: Cross-Examining the Child Sexual Abuse Accommodations Syndrome Expert" and "Getting Experts in Court-Appointed Cases."

 

How Does Germany Address Mentally Unfit Persons Committing Crime?

If a person is found to be lacking in responsibility for a crime (Section 20, German Criminal Code) or have diminished responsibility (Section 21, German Criminal Code) because of a pathological mental disorder, a profound disturbance in awareness of one’ actions, a mental deficiency or any other serious mental abnormality’ the court will order their involuntary admission to a closed psychiatric hospital for treatment.

The German criminal law obliges the court to order an indeterminate confinement in a closed psychiatric hospital, in addition to punishment, if the offender had acted under diminished criminal responsibility and is still considered to be dangerous.

In Germany, the Criminal Code dealing with offenders with mental illness provides that hospitalisation should be imposed before or instead of a prison sentence.

While admission to hospital is potentially life-long, the Federal Constitutional Court (Bundesverfassunsgericht) has stated that the length of involuntary hospitalisation must be directly related to the severity of the offence as well as the risk of recidivism.

The goal is to reach a balance between the rights of the patient to treatment and the responsibility of the courts to ensure public safety.

 

Should anything be changed to ensure mental illness is not used as an ‘excuse’?

Throughout my career as defense counsel I have seen far too many people with mental illnesses become entangled with the criminal justice system due to lack, or failure, of treatment. Mental illness can be an explanation, it is however not an excuse.

It is a misconception that a “not criminally responsible” ruling is a “get-out-of-jail-free card” and that a diagnosis of serious mental illness often only serves to prevent justice from being served.

Closed psychiatric hospitals and mental facilities are far from comfortable places to be kept in, and freedom is removed, but the criminal patient does have access to psychiatric care, medication, and other therapies, instead of being warehoused in a prison where they are far less likely to get adequate care or be rehabilitated.

When committed to a closed psychiatric hospital for a potentially ‘indefinite period’, judicial checks are mandatory at least every year (or six monthly for those detained under Section 64) to ascertain the suitability of continued commitment. The convicted offender remains under the control of the criminal court during psychiatric hospitalsation. The patient is only discharged when ‘no further criminal acts are deemed likely and detention in the hospital shall only be terminated when ‘the court finds that the conditions for the measure no longer exist or that the continued enforcement of the measure would be disproportionate’. The risk of reoffending due to mental illness can tip the scales in the direction of not releasing the offender from a closed psychiatric hospital even if the full prison sentence is served or parole might normally be considered.

Empirical data show that persons with personality disorders adjudged to have diminished responsibility remain in psychiatric confinement longer than if they had been regarded as fully responsible, and had been sentenced only to imprisonment.

A client’s mental health and cognitive impairment matter at every stage of the lawyer/client relationship, from the first meeting, to case strategising, to the plea decision, the trial itself, the sentencing process, and beyond. At each juncture, there are different legal issues and behavioral issues that must be taken seriously by defense counsel.

Defense attorneys are bound by law to give their clients, including those who suffer from mental illness, the best possible representation. The fundamental tension in this practice area arises because what is in your client’s best interest, from a clinical or therapeutic perspective, is nearly always something that is contrary to your client’s wishes.

As a defence attorney you need substantial legal knowledge when it comes to what ‘criminal responsibility’, ‘diminished criminal responsibility’ and ‘insanity’ mean in the context of criminal law. At least a general understanding of the specific disabilities your clients may have, severity of those mental disabilities, as well as the client’s personal background and history, is necessary. To get to the root of a behaviour, as a criminal lawyer I need to ask such questions as: ‘Did the accused have a troubled childhood? Did he exhibit empathy for others? Did he abuse drugs or alcohol?’ My experience is that mental illness doesn’t occur in a vacuum. It’s tangled up with everything else in a person’s life.

In the end it is not simply black and white. As every person on this world is unique so are the crimes people commit. Every person is different and every criminal case is different.

 

What could be done to ensure victims that full justice is being served?

The function of the criminal justice system is to protect rights, to determine guilt and to decide punishment. Therefore, the focus is on due process and a fair trial. However, victims often feel that they are left out of, or even abused by, the system rather than it attending to their needs. They share the widely-held view that the criminal justice system does not treat them fairly and it is only the offender with a real voice in the criminal proceedings.

Victims want to be able to participate in the process of responding to the crime. The German Code of Criminal Procedure allows victims of an offence, or their survivors, the right to participate in the trial as intervenors or private prosecutors. Intervenors are usually represented by counsel and may produce evidence related to the case, as well as question witnesses. Victims often join the proceedings to enhance their chances of success in civil litigation.

Victims also feel that the offenders get all the support and adequate care and therapy to be rehabilitated while victims are left alone with their fears, and physical and psychological damage resulting from a crime.

Many people struggle to regain a sense of safety and security. Repairing harm may be the only way to truly address the needs of victims of crime. After all, it is the harm caused to victims that is generally the justification for declaring certain acts illegal.

Instead of understanding justice simply in terms of guilt and punishment, it is important to understand justice in terms of responsibility and reparation. Restorative justice places the victim with the offender at the centre of the process. From this perspective justice is achieved through offenders accepting responsibility for their actions, and taking steps to make amends. The goal is that the victim, the offender and therefore also the community, are restored to well-being.

 

Julian Heiss is one of the founding partners of Cura Advocati and leads the law firm´s criminal department since 2003.

As a certified specialist in criminal law with more than 14 years of experience Julian Heiss has handled hundreds of trials and a long list of clients across Germany in all criminal law segments, both as advisor and as litigator. He defends his clients before Local Courts, Regional Courts, Higher Regional Courts and before the Federal Supreme Court and has extensive trial, plea bargaining and negotiating experience.

See his referrals on Anwalt.de, one of the leading advocate registers in Germany (in German language). 

 

Stigmatisation of Mental Health: Are We Labelled in Reference to our Skin Colour?

 As soon as media coverage began on the 58 murders and nearly 500 assaults committed by Stephen Paddock on the 1^st October 2017, there was a desire to apply a label; to ascribe a single issue. Had he been black, that label would have been “gang violence” or “urban decay”. Had he been brown that label would have been “terrorist[1] ties.” As he was white, the label was “lone wolf.”

Within hours the media was attempting to answer the question as to why. There was speculation that he suffered from frontotemporal lobar degeneration, a disease which alters the executive functions of the brain. He was described as terribly depressed. He had been prescribed an anxiety drug which leads to aggressive behaviour. It was reported that his father was a bank robber and that therefore he may be emulating that behaviour, or that there may be a genetic reason for his conduct. Part of society finds it easier to accept that there is a reason for such conduct rather, than to accept it as evil or wickedness. Others assert that almost all criminal activity is now justified by a diagnosis of mental illness often obtained by criminals simulating mental illness in order to avoid punishment.

Those with mental illness are still stigmatised in society. Recent studies[2] show that each year 1 in 4 of us experiences a mental health problem and 1 in 6 of us reports a common mental health problem in any given week. The rate per 100 of common mental health problems for psychotic disorder is 0.7, bipolar disorder 2, anti-social personality disorder 3.3 and borderline personality disorder 2.4.

The vast majority of homicides are committed by those without mental health disorders. Over the past 10 years in England and Wales there were 6,605 convictions for homicide. Only 10% of those were committed by people with mental health disorders, many by those who did not have a severe mental illness. The primary diagnosis was often personality disorder coupled with drug and alcohol misuse. Of the 67 committed by those experiencing an abnormal state of mind, the majority were not receiving mental health care at the time of the offence. Most victims of homicide are members of the perpetrator's family rather than strangers. In 2017[3], 47% of victims of violent crime believed that their attackers were under the influence of alcohol, 17% believed the attacker was under the influence of drugs and 1% believed that the attacker had a mental health disorder.

Whilst the rate of homicide has remained fairly constant since 1990, violent crime has increased due in some measure to the increase in knife and gun crime and to the change in statistical recording.

Within the prison environment[4], it appears that more women (26%) than men (16%)  receive treatment annually for mental health disorders. The rate of psychosis[5] with the prison environment is much higher amongst women (25%) and men (15%) than that of the general population (4%). In the last year 7,917 prisoners were recorded[6] as having treatment for mental health disorders. It seems therefore that those with mental health disorders are over represented within the prison environment.

Conversely people with mental health disorders are three times more likely to be victims of crime than the general public, ten times more likely to be assaulted and six out of ten women with mental health disorders are likely to be sexually assaulted.

There is an inherent danger in stigmatising those with a mental illness with inflammatory headlines and the conflation of statistics. The reality is that the percentage of homicides caused by those with mental health disorders is relatively small.

When faced with a homicide where a historic mental health disorder is documented, both prosecution and defence can immediately obtain psychiatric reports to consider whether there is evidence that the disorder has been conducted such as to afford the perpetrator a partial defence.  This may mean that the homicide is defined as manslaughter rather than murder. The mere fact of having a disorder does not automatically permit such a defence. Each case turns on its own facts. The prosecution in any such case will look vigorously at the reports and obtain their own assessment.

For both sides, it is more complex when there has been no historic diagnosis. There are concerns that offenders may attempt to fake a mental illness to avoid partial blame for the offence. These concerns are shared by the public who read of Ian Brady's “confession” that he had used method acting to fake his condition. Surveys suggest that between 12% and 22% of cases involve an element of suspects attempting to fake mental illness. According to the experts it takes a very skilful malingerer. Recent tests for malingering are far more vigorous than they were in the 1970's and before. It is now difficult to fake such an illness. Faking in any event ensures only detention in a hospital, often a secure hospital, with no guarantee of release at any stage.

There are also many people who are only diagnosed with mental health disorders once they have committed a serious crime. These are often adults who as children who were “looked after” within the care system or the subject of poor parenting where challenging behaviour was regarded as wilful, rather than part of a condition. They may well have served several custodial sentences in advance of diagnosis. They require the assistance of an experienced Solicitor or Counsel who may well spot traits of mental health disorder which are then explored by experts. The severe and savage cuts to legal aid have reduced the number of lawyers willing to conduct criminal work. Vulnerable defendants therefore are increasingly obliged to rely on inexperienced and/or over worked practitioners who may fail to spot the signs as they have insufficient time to spend with clients.

Until reports have been obtained it is not possible to take instructions. If the reports indicate that a person is fit to plead and stand trial, then often an intermediary is instructed to assist with the taking of instructions and to assist at trial. There is no statutory right to have an intermediary and one has to rely upon the discretion of the Judge to grant legal aid. Recently intermediaries have been refused or permitted only for the period when the defendant gives evidence. This can cause gross unfairness and inequality.
There are those who are so unwell or whose intellect is so low that they are found to be unfit to plead and to stand trial. This finding means that the victim of any crime or their family often feel deprived of being heard and feel that the suspect is “getting away with it.” The absence of trial can be equally unfair for a suspect who is unable to have their say and unable to be acquitted.

The test that the judge applies when deciding if a defendant is unfit to plead remains that set down in the 1836 case of Pritchard[7]  Following the case of Davies[8],  this was generally understood to require a defendant to be able to: plead to the indictment, understand the course of proceedings, instruct a lawyer, challenge a juror and understand the evidence.  More recently the Pritchard test has been interpreted by the courts to make it more consistent with the modern trial process. In the case of John M [9]express reference is made to the need to be able to give evidence.

The area has caused increasing concern. The Law Commission[10] have recently published proposals to change the out of date, misunderstood and inconsistently applied Pritchard test. They propose a new test as to decision making capacity. The aim is wherever possible to have a full trial by utilising a series of measures to make the process possible. These include a statutory right to an intermediary and training for Judges and all advocates on both sides. They make three primary recommendations: firstly, that the Court can choose not to have a hearing at that stage if other disposals may be better; secondly that the hearing should closely mirror a full trial so that victims have a right to speak and thirdly, after it has been proved that the suspect did the act there will be more supervision available or more restrictive measures applied. They also recommend that unfitness to plead hearings can be heard in the Magistrates and Youth Court.

There is no straightforward solution to this difficult issue and it will be interesting to see whether the recommendations suggested by the Law Commission are brought into law.

 

////

Mary Prior QC is a jury advocate. She undertakes murder trials and other cases involving a death, either of a child or of an employee within the work place.

Mary is regularly instructed in murder cases where the deceased is a spouse or child and in cases where the deceased is a stranger. She is instructed in large scale child sexual exploitation cases which require extensive research and reading of social services material and where cross-examination of often vulnerable complainants is key.

[1]          A terrorist is a person who uses unlawful violence and intimidation in pursuit of political aims.  A lone wolf has no such pursuit. Often a lone wolf seeks no more than fame.

[2]        McManus, S., Meltzer, H., Brugha, T. S., Bebbington, P. E., & Jenkins, R. (2009). Adult psychiatric morbidity in England, 2007: results of a household survey. The NHS Information Centre for health and social care.

[3]     British Crime Survey 2017

[4]     Ministry of Justice 2013 Gender differences in substance misuse and mental health amongst prisoners.

[5]     Wales, N. et al 2006 self reported psychotic symptoms in the general population. British Journal of Psychiatry 188 519-526.

[6]     National Audit Office Report into mental health in prisons 2017.

[7]                 R V Pritchard (1836) 7 C & P 303, 173 ER 135.

[8]     R v Davies (1853) 3 Car & Kir 328, 175 ER 575.

[9]                 R v M (John) [2003] EWCA Crim 3452, [2003] All ER (D) 199.
[10]   A modern approach to unfitness to plead. The Law Commission.

After Stephen Paddock killed 58 people in Las Vegas and wounded more than 400, another unfortunate mass shooting in the US has yet again brought the ever-important point to moot: if there needs to be tighter gun control laws imposed in the US, and what could be done.

And even though homicide rates have massively declined since 1960, the US still sees a mass shooting more often than you would expect* where one major mass shooting occurs every two months.

Talks are amidst, with reports suggesting that senators are considering banning bump stocks (the device allowing Paddock to convert his semiautomatic rifles into an automatic fire) and halting the bill which will make it easier for Americans to buy gun silencers; but even though more than one person a day dies due to gun violence in the US[i], Trump quietly revoked Obama’s bill and blocked the Social Security Administration from reporting mentally impaired recipients to a national background-check database.

US civilians own 270 million to 310 million firearms, resulting in around 35% to 42% of US households owning at least one gun[1] [2], making them the country which has the highest rate of civilian guns and they were not cutting it close: in second place was Yemen (with 55 guns per 100 civilians, where the US have approximately 90 for every 100 civilians)[3]. Of course, this also means they have the highest rate of mass shootings. But what can be done?

 

Get Rid of Guns

What have other countries done to tackle mass shootings? After the 1996 mass shooting in Dunblane which killed 16 young children and a school teacher, the UK [eventually] banned all private hand guns, imposed detailed background checks on gun owners prior to the ban being lawfully imposed and the Government also compensated gun owners; since then, there has only been one mass shooting in the UK.

Post the Port Arthur Massacre, Australia also followed suit, implementing tighter restrictions by banning automatic and semiautomatic firearms, adopting new licensing requirements, and applying a 28-day waiting period for gun purchases. After significantly rising tax, more than 600,000 civilian-owned firearms were bought and destroyed. Since then, no massacres on such a scale have occurred.

Sounds like an easy solution: tighter gun laws and restrictions. An amnesty of guns, albeit a big, costly job, has proven to lessen such tragic events, and so all proponents of tighter gun laws can collectively internally scream as we bang our heads against the walls Trump wishes to build; and we scream: why can’t the US learn from all this?

It is not as simple as it sounds. Firstly, as aforementioned, the US has a lot of guns and a lot of civilians owning these guns. Not only would gaining control over firearms pose quite a challenge, but a huge uproar. Que the: “We have the right to protect ourselves” statements and the fact that the Australian amnesty cost tax-payers [all together] half a billion dollars, which would be a fraction of the cost the US’ attempt of retaining guns, and we can see why an amnesty seem less realistic for the land of the free.

The US is also unique in the sense that they have a Bill stating they have a right to be able to self-defend themselves and citizens are attached to these rights, allowing them to justify their need for guns; so, what if their rights were changed?

 

Can they change the second amendment?

“A well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

We need not delve into this too deep as it has been debated time and time again. President Trump has made it evidently clear he is a true follower of the Second Amendment and whilst throughout his campaign he would shun Hillary Clinton for threatening to take away citizens’ rights for protection and freedom, we can all silently acknowledge the fact that the NRA endorsed him during his campaign, as they do with 98% of Republicans[4]. To all those that argue this is not a strong enough argument, lest we forget when Trump supported Obama’s remarks, before the hefty endorsement given by his pals at the NRA, for a reformation of the law after the tragic Sandy Hook massacre[5]; “President Obama spoke for me and every American”, Trump said, yet his speech post the Las Vegas shooting was nowhere near such remarks, because his words are now funded by the organisation behind the weaponry used.

The fact is that if opinion does not change, then neither will the Second Amendment; 74% of gun owners say that there is an ‘essential’ right to own a gun[6], while Pew Surveys reveal that gun owners are more likely to contact officials about gun policies, with 60% of these supporting laxer laws[7].

Mix these strong opinions for relaxed gun laws alongside the fact there is no real, solid opposing organisation against the NRA and we realise we are driving in circles around a one-way street. To add fire to fury, changes in gun laws previously made have cost millions of dollars and were not enforced enough to have a visible effect, posing the question to their citizens to why the US even bothered to try.

This brings us to our concluding, yet vital point: “buying back” guns is not really much of an option as it is the government that will need to confiscate millions of firearms. Now if the government is endorsed by the organisation supporting guns and previous restrictions have failed, this is likely to as well. The UK and Australia’s ‘buying back guns’ programme, almost bribing those with weaponry for the exchange of money and anonymity to avoid prosecution of having illegal firearms, only worked for two reasons: the government thoroughly enforced it and the law did not state any right for citizens to bear arms.

Changing legislation will not only take months, but it also seems like an impossible dream, and if the citizens strongly support their rights to bear arms, they won’t be handing in their weapons so easily; in fact, it could even cause an uproar resulting in civil war, with police forcing citizens to drop their weapons.

It is a tough one to get around, and whilst speculators around the globe shout: “Do something about this”, it almost feels like a puzzle which will never be solved.

 

*mass shooting being defined as an event where at least four people are shot

 

[1]http://www.pewresearch.org/fact-tank/2013/06/04/a-minority-of-americans-own-guns-but-just-how-many-is-unclear/

[2] http://www.gallup.com/poll/1645/Guns.aspx

[3] http://www.telegraph.co.uk/news/0/one-mass-shooting-every-day-seven-facts-gun-violence-america/

[4] http://www.washingtonpost.com/wp-srv/special/nation/guns/nra-endorsements-campaign-spending/

[5] http://www.npr.org/2012/12/16/167412995/transcript-president-obama-at-sandy-hook-prayer-vigil

[6] https://www.theguardian.com/us-news/2017/oct/03/gun-control-america-failed-las-vegas

[7] https://www.vox.com/policy-and-politics/2017/10/13/16468902/gun-control-politics-intensity

[i] Reports show that 346 people are estimated to have been killed in American mass shootings this year

“Transparency, candid advice, business oriented solutions and open communication with clients are key to a successful client-attorney relationship.”, speaks renowned expert Prof. Dr. Mohamed S. Abdel Wahab.

“Also, training and keeping the client abreast of recent legal developments that impact their business are of paramount importance. This could help shape corporate policies and enable clients to make informed decisions.

“The mark of a worthy practitioner involves a combination of: great attention to details, business oriented approach, solid legal base and upholding professional ethics.”

Discussing all things arbitration and foreign law, Prof. Mohamed offers captivating insights into the land of the law and dispute resolution.

 

Your doctorate focused on the application of foreign law in the age of globalisation; since the study was conducted in 2004, how would you predict the outcome to be today?

It is quite fascinating to note that the topic I elected to write a thesis on more than 17 years ago remains a topical issue to the extent that a world leading institution such as the IBA has constituted a sub-committee, under the auspices of the IBA Arbitration Committee, to tackle public policy in relation to enforcement of arbitral awards, and the sub-committee issued an excellent report last year on the matter. Public policy remains an escape clause that can be used and abused beyond its proper role and scope. However, it is worth noting that arbitration friendly jurisdictions and courts in leading legal systems do restrain the applications of public policy, reserving same to the flagrant contraventions of the fundamentals of the concerned legal system. Nowadays, courts in leading jurisdictions do understand that public policy is not a hunt for the better law and is not destined to offer national protectionism beyond that which is indispensable. Nevertheless, as the world grows more global and more divided, I predict that public policy will remain a hot topic for the foreseeable future and its heads will undergo profound transmogrification depending on the prevailing sacrosanct principles and policies that define countries at a given moment in time. Whilst everyone refers to public policy as an unruly horse, I consider it a hydra that must be tamed and restrained. Be that as it may, I find no better words than recalling those of the late Lord Denning, in Enderby Town Football Club Ltd. v. Football Association Ltd. [1971] Ch 606-607, who stated: “So unruly horse, it is, that no judge should ever try to mount it, lest it run away with him. I disagree. With a good man in the saddle, the unruly horse can be kept in control. It can jump over obstacles. It can leap the fences put up by fictions and come down on the side of justice.”   

 

Moreover, can you share the most important findings of your study, regarding English, French and Egyptian legal systems?

Amongst the most important findings of my study were the following: (i) there is a lot more commonality between legal systems than what may initially meet the eye; (ii) comparative law and interdisciplinary research are key to practitioners who aspire to practice internationally; (iii) much more novel and modern work is needed to legally and practically distinguish public policy from neighbouring concepts such as lois de police (overriding mandatory norms); (iv) harmonisation amongst legal systems having different structures, norms and principles is neither impossible nor overwhelmingly daunting; and (v) deciphering the cultural trends of globalisation can help ascertain the trajectory of public policy and assist in understanding the law and economics of certain legal principles.

 

Your expertise in arbitration focuses on a range of sectors, including construction, finance, oil & gas, and telecommunications; out of the range of sectors you deal with, which sector poses the most challenges? Why?

I believe all of the sectors you list are challenging. Changes in the global economy, jurisdiction-specific regulatory environments and the innovation brought about by the technological revolution do impact these sectors.  For example, in construction, we are living an era of mega projects that require special expertise and skills in negotiating projects contracts and in dispute avoidance, dispute management and dispute resolution.

Similarly, the telecommunications sector is a fast-changing sector, which contracts and disputes require high level expertise in complex technical and regulatory issues, especially in developing economies that have not yet spawned a stabilised system for telecommunications contracts, licenses and disputes. Also, oil & gas offers a league of its own, where gas pricing and oil related disputes raise novel and intricate legal issues that necessitate hands-on expertise in a dynamic field that is in a constant state of flux.

In the specific context of finance, the Islamic finance sector is growing at approximately 15% per annum and Islamic banking products are widely used globally. There are more than 300 Islamic financial institutions worldwide, including “Islamic windows” of conventional banks. More than 55 developing and emerging market countries are involved in Islamic banking and finance. Over the past two decades, Islamic banking and finance products have proved to be compatible with international trade and investment. It is worth noting that Islamic sukuk, equivalent to conventional bonds except that both parties own the debt, are the fastest growing product on the financial market, and the sukuk market has increased at an average annual rate of 40%.

In any event, it is worth noting that the construction, oil & gas, finance and telecommunications sectors do raise issues of public and private interests and are indeed landmark sectors of development in diverse economies. I am hopeful that the pool of qualified practitioners that combine the necessary technical and legal expertise for sector specific disputes would benefit from the new international initiatives on diversity to enable more global inclusion and better generational and ethnic representations.

How do you envisage the role that Africa will play in the future of international arbitration?

I do believe that the African Continent has an important role to play in the future of international arbitration. Hitherto, African countries have not contributed much to international arbitration, but it falls upon us to exhibit the necessary set of skills that secures confidence and respect in African minds and enable others to access this pool of talent that adds much value regionally and globally. African States are not devoid of talent and possess all the necessary requisites and characteristics that facilitate their contribution to the edifice of international arbitration. I dare say that Africa has an outstanding pool of individuals who can easily compete and excel at international levels. The only issue is that more confidence, team work and opportunities are needed to help showcase such talent and knowledge.

Given the changing landscape of international arbitration, and the challenges facing traditionalists, I am of the view that the future holds credible myriad opportunities for African systems and individuals to play more proactive roles in re-shaping the arbitration landscape. However, the key to securing a well-deserved place for Africans in the world of international arbitration is founded on a six-fold criterion: knowledge, diversity, specialisation, competence, integrity, and innovation.

 

Moreover, after many years dealing with international disputes, which jurisdictions do you think need ‘catching up’ in regard to their legal system?

I would say that African and MENA region countries have a golden opportunity to ‘catch up’ and develop their legal systems in accordance with the prevailing state-of-the-art principles. Many of the world’s fastest growing economies are located in these regions, including Sub-Saharan Africa. This catching up is not difficult and could be attained through: (i) prudent investment policies, (ii) modernising the legal system and national laws, and (iii) empowering the judiciary to undertake the necessary reforms and innovate.

 

As a precedent thought leader in your field, can you label three important aspects future lawyers must consider, in order to pursue a successful career in arbitration?

My advice to all aspiring younger colleagues who wish to pursue a successful career in arbitration is to work hard, be patient and let their work speak for them. Success necessitates the existence of a combination of soft and hard skills. One must remain modest, strive to learn, work with due diligence and integrity, maintain high ethical standards, develop competence and expertise, continue to innovate and never lose the enthusiasm.

 

As a world leading international arbitrator and arbitration practitioner, what is your take on the Investor-State Dispute Settlement landscape?

The international investment arbitration landscape is changing and this is a fact. However, whether such changes are good or bad is a matter that remains to be assessed in light of the winds of change that are blowing across the Investor-State Dispute Settlement (“ISDS”) system. Moreover, whether the waves of change that are sweeping across the ISDS system are nothing but an ‘interim flash’ or truly a ‘global backlash’ remains open to debate. However, I am of the view that changes are indeed taking place, but surely the answer to any shortcomings of the presently existing ISDS system lies not in the creation of an exclusive State centric and/or State appointed investment courts. Principally, the growing fear of having privately constituted arbitral tribunals decide disputes in a manner that exposes host States to legal and financial risks and in a way that might negatively impact the host States’ sovereign right to regulate matters of public interest merit due consideration and attention. However, it remains interesting to witness States’ scepticism towards the ISDS system at a time when statistics show that States win more than lose. Whilst many speak of system ‘reform’ to justify the changes advocated, it is indeed legitimate to ask whether the aim is really one of ‘reform’, ‘re-formation’, or ‘reconfiguration’. In a nutshell, a successful ISDS system should remain founded on the balanced perception of its users, so that it is neither State-centric nor investor-oriented. System neutrality boost confidence and is a guaranteed recipe for success. It is now in our collective best interests to stabilise the ISDS system, dispense with any shortcomings thereof, maintain its independence and neutrality from unjustifiable influences, and ensure that the rule of law governs and prevails.   

 

Prof. Dr. Mohamed S. Abdel Wahab

msw@zulficarpartners.com

www.zulficarpartners.com/

Tel: +20(2) 24612-147

Direct: +20(2) 24612-160

  

Prof. Dr. Mohamed S. Abdel Wahab is Founding Partner and Head of International Arbitration at Zulficar & Partners Law Firm, which has an arbitration team of (20) dedicated associates well versed in prosecuting international commercial and investment arbitrations.

Prof. Dr. Abdel Wahab is recognised as one of the best international arbitration practitioners in the world today and a leading thought leader in the field. His world class expertise on international arbitration, Egyptian and Arab Laws, Islamic Shari’a, telecommunications, construction law and practice, oil & gas and online dispute resolution is acknowledged by clients, peers and leading directories. He holds over fifty-five prizes for academic achievement, and has acted and appeared in proceedings governed by Bahraini, Egyptian, English, French, Jordanian, Kuwaiti, Libyan, New York, Omani, Pakistani, Qatari, Saudi, Spanish, Swiss, Syrian, Italian and United Arab Emirates law(s), as well as the general principles of law.

Zulficar & Partners is an international arbitration practice and corporate law firm based in the Nile City Building in the heart of Cairo, Egypt. It is well known globally for its world-class and award-winning arbitration group, and also specialises in Banking and Project Finance, Mergers and Acquisitions, Capital Market Procedures and Transactions, Oil & Gas, IT, Anti-Trust and Litigation. The Firm offers a comprehensive range of legal services to a diverse array of commercial, industrial, and financial Clients both in Egypt and internationally. Established in June 2009, the Firm has 10 partners and more than 70 associates and is expanding at an accelerated rate. The Firm was recently awarded, in 2017, the Global Arbitration Review Award for the Mediterranean and North African Dispute Resolution Firm that impressed in 2016. The Firm is a market and regional leader across all sectors.

We have had the pleasure of hearing from Howard Nations, who has served an amazing career in the legal industry. He has been practising for over 50 years, and this month he speaks on his journey to specialising in law, what prepared him for his successful career, and his most interesting cases.

 

Did you always know that you wanted to be a lawyer?

There was never any doubt about being a lawyer. It was, I was influenced when I was nine years old; it was 1947. There was a man who used to have the little Shetland ponies; I used to go down and ride the ponies all the time and help him take care of them. Well this fellow was getting called away for 90 days of National Guard duty or military reserve duty and needed somebody to take care of his horses, and I offered to take care of them for a dollar a day, to which he agreed. When he comes back after 90 days and he said, “thanks a lot, kid”.  I replied: “Yeah, what about my 93 dollars?”  And he said, “I don't know what you're talking about.”

Well, fortunately I had gotten it verified with the auctioneer who ran the stables, and so I went to my grandfather who took me to a lawyer. I told him the story that this guy had promised me a dollar a day for 93 days and how I did the work and now he wouldn't pay me. The lawyer listened to me for a while and wrote some things out by hand; we walked across the street to the Courthouse, we went in and had an immediate hearing. He said, “okay, kid, tell the judge your story.”.

The judge called the auctioneer by telephone and asked him, to which the auctioneer said: “Yeah, I heard him say that, he did promise him.” The judge awards me $93, and then he tells the auctioneer if it's not paid by Saturday, then to sell those horses at auction and give me the money.

But what impressed me more, was he awarded me $93 and he awarded my lawyer $250. And I was thinking, “wait a minute, I worked 93 days, I got $93. The lawyer heard about this this morning and this afternoon he got $250.” I asked Ernest McDonald, who was my lawyer: what do you have to do to be a lawyer? Because I caught on really quick that it was better to be a lawyer than it was to be a caretaker for horses. But from that, I was impressed by the power of the Judge; I was impressed by the aura, the drama, the setting of the courtroom, and I was very impressed that the Judge could just resolve this whole thing. That made an impression on me that lasted, and still lasts today.

  

Do you feel that law school adequately prepared you for a career as a lawyer or do you think the real world experience was more beneficial?

Well, while I was in law school I worked fulltime at a local law firm, with a 35-year old lawyer who was very successful. He had a plaintiffs practice, a defence practice, a criminal law practice, domestic relations practice; he had everything. I got exposed to all of it and so I got to see from the inside to what a divorce case looks like, what a criminal case looks like, what a personal injury plaintiff looks like, what defence representing an insurance company looks like. I learned as much of value there, as I did from my second and third years of law school.

  

What are the most notable or interesting cases you were involved in that you would like to discuss?

Well, there have been a lot of those.  I got involved, very early in my career, in the Candace Mossier case involving the murder of John Mossier; Candace Mossier, his wife, had been tried along with Melvin Lane Powers, her nephew, for the murder of her husband. There was a big national publicity over this case, it was huge. After Percy Foreman got an acquittal for Candace and Melvin Lane Powers, the Saturday Evening Post ran a two-part article about Candace and her nephew as being lovers. And so Candace sued the Saturday Evening Post for 83 million dollars for damage to her otherwise spotless reputation. I had the pleasure to spend an immense amount of time investigating that entire murder trial, talking to all the witnesses. That case alone kept me with the big law firm for an extra two years. I wanted to start my own, but the involvement with the Mossier case was fascinating and I couldn't leave without finishing it. So, I stayed five years with the firm instead of three.  At the end of the day her case was dismissed but it was a grand experience that provided me with a lot of education.

One of my best accomplishments was when I tried a case against Astroworld for the design of the rollercoaster and as a result of my case seats in rollercoasters were redesigned which set a new standard of safety that was adopted by most rollercoaster manufacturers. So, we literally changed the industry and the safety of rollercoasters due to this jury verdict I got against Astroworld. In this case, we introduced into evidence a computer-generated animation of the roller coaster, and a computer-generated animation of the injury to my client. It was the first case anywhere in history that animations had ever been introduced into evidence and this opened the door for animation evidence in litigation, which has come a long way since then.

  

You have served in leadership roles in numerous associations for trial lawyers including the National Trial Lawyers, the Texas Trial Lawyers Association and the Association of Trial Lawyers in America. Why is it important to you to serve in these leadership roles?

What lawyers do is very important.  The work we do individually is important, but the work we do as associations is very important. If you take the AAJ, American Association for Justice, for example, and its work in lobbying to protect the rights of individual citizens in this country is unbelievably important. In the absence of that, the tort system would have been gone by now. The tort system would have been replaced by administrative agencies and the jury trial system would be reduced to arbitration, if there was any recovery at all. And the only thing protecting the rights of individual citizens are the Plaintiffs Bar and its associations. It's important to give back to the profession and the way to give back is by associating with other trial lawyers in organisations like this to protect the civil justice system in the country.

 

What do you see for the future of the legal community?

It's not as bright as it used to be because there is an attack on the judicial system in this country and an attack on the civil justice system.

There is an attack on the criminal justice system and on constitutional principle; these attacks are being made by people with huge fortunes and access to the media and the opportunity to diminish the perception of the Bar, perception of the legal profession.

I'm concerned that the jury trials are on the way out.  If it were not for the Seventh Amendment, we would have lost jury trials a long time ago.

I'm concerned that we will no longer have the lawsuits to train our young lawyers. When I first started practicing law, we had 10 to 15 cases set for trial every Monday morning. I actually had one situation where I was in trial in two cases at the same time.

That's the way it used to be; we just tried case after case which you can't do anymore. It was great training as we tried every type of case. Those who want to do away with jury trials have had tremendous success in Texas. The number of jury trials in Texas has diminished just so severely that I don't even try cases in Texas any more.

 

What’s your advice to future lawyers?

In this business if you put your clients first and you always do the right thing on behalf of your clients and you do it within the ethical rules and within the rules that control both our profession and our judicial system, the rewards will be there. There's a saying that those who do good, do well. And the worst thing you can do, I think, is to focus on how much money you can make which is a tendency when you graduate from college and law school; today you have so much debt that you immediately start thinking about how to pay it off and making the most money in the fastest way. But if you focus on doing the best job you can with every single thing that's in front of you with every individual case, and treat every client and every case as your most important client and your most important case, and do it within the bounds of ethics, you'll do fine. You'll do good and you'll do well.

 

Howard L. Nations

Founder

713-807-8400 | Toll Free: 1-800-269-3050

www.howardnations.com

 

Howard Nations has been at the forefront of civil and personal injury litigation for over 50 years and has built a national practice focused on mass tort pharmaceuticals, individual catastrophic injuries, and complex business litigation.

Howard graduated from Florida State University in 1963 and from Vanderbilt Law School in 1966. He has three trial board certifications and has tried countless cases involving catastrophic injury, wrongful death, breach of contract, will contests, securities fraud, real estate fraud and domestic relations, among others. He also represented the accused in more than 300 pro bono criminal cases.

As a pioneer in courtroom technology, Howard was the first attorney to have computer-generated liability and medical animations admitted into evidence at trial. As a leader in education, Howard co-founded AAJ’s National College of Advocacy, and has taught advocacy-related courses in law schools for 35 years. As one of the most sought after educators in the law profession, he is widely published and has lectured to lawyers in all 50 states. Howard also pioneered the use of forensic psychological and neurolinguistic principles to persuade judges and jurors in trial.

 The Nations Law Firm is a national litigation firm. We represent plaintiffs who have been injured by defective drugs, medical devices, and corporate wrongdoing. We also specialise in catastrophic injuries and wrongful death from other causes, such as trucking accidents, other motor vehicle accidents, drunk driving, elevator accidents, birth trauma, amusement park rides and other defective products.

Native Americans and Indian Tribes have prominence in the US, especially in relation to the Indian Gaming Industry; nonetheless, there are common misconceptions and unjust perceptions of these Tribes and their authority in respects to the law and gaming industry.

We have the pleasure of speaking with Danielle Her Many Horses, who is the General Counsel for the National Indian Gaming Association, and speaks on the challenges the Indian gaming industry faces.

 

What common challenges do the Indian Gaming industry face in the US? How do these challenges often lead to litigation?

In 2016, 244 tribal governments operated 484 gaming facilities in 28 states, helping Indian gaming grow to $31.2 billion in direct revenues (a 4.4% increase over 2015) and $4.2 billion in ancillary revenues[1]for a total of $35.4 billion in total revenues. Overall Indian gaming directly employs over 310,000 people. Indian tribes engaged in gaming are operating under their inherent right of self-government. The Indian Gaming Regulatory Act, (IGRA) is a federal act that limits tribal sovereignty and creates a limited role for federal and even more minutely state regulation. The fact there are 273 separate sovereigns, each with its own laws and public policy concerns gives rise to conflicting interests, some of which lead to litigation.

 

What are common misconceptions that people have about/towards Indian Law? What could be done to reduce these issues?

The most common misperception is that Congress through IGRA, authorised or granted Indian tribes the right to conduct gaming. The truth is that Indian tribes were conducting gaming operations for more than a decade prior to IGRA. In the 1970s, a handful of visionary tribal leaders used gaming as a means to generate revenue for essential tribal government programmes and services. States and commercial gaming interests challenged these acts of tribal self-governance in federal court. Litigation culminated in the 1987 Supreme Court decision in California v. Cabazon, which held that Indian tribes retained inherent sovereign authority to conduct gaming on Indian lands, free of state government interference. A little more than 18 months later, in 1988, Congress enacted IGRA, in part to impose a federal regulatory system, placing some limits on the Court’s Cabazon decision.

A related misperception is that Indian gaming is untaxed commercial activity. Again, this could not be further from the truth. Tribal governments establish gaming operations to generate revenue for essential programmes and services to Native communities. IGRA in fact requires that Indian gaming revenues be used for one of five government-driven purposes: to fund tribal governmental operations or programmes; to provide for the general welfare of the tribe and its members; to promote tribal economic development; to donate to charitable organisations, and to help fund operations of local government agencies. So in fact, Indian gaming is 100% taxed by tribal governments.

 

Do you think the US government and administration do more to help with these issues?

Federal Indian policy has gone through many iterations since the inception of the United States. Upon formation, the US respected tribal sovereignty, acknowledging Indian tribes as separate governments in the US Constitution and through hundreds of treaties in which tribes ceded homelands in return for federal government promises to protect tribal sovereignty, and provide for basic services on Indian lands. However, policies through the 1800s and mid-1900s directly abrogated these obligations, taking hundreds of millions of acres of Indian lands, suppressing tribal culture, and devastating tribal economies. The current policy supporting Indian self-determination - formally adopted in 1970 - seeks to reverse much of the damage inflicted on tribal governments. Tribal gaming is one of the most successful exercises of Indian self-determination: tribes taking matters into their own hands. It has brought jobs into communities where there were none before. It has helped tribal economies diversify and provide more long term economic growth. It is fulfilling the promise of “livable homelands” for Indian tribes. However, Indian gaming is not a panacea, and does not divest the United States of its solemn treaty and trust obligations to provide basic health, education, and public safety services to Native communities.

 

NIGA’s aim is to protect tribal sovereignty; as Thought Leader, can you share ways in which this could be done by other legal experts?

Respecting tribal institutions is paramount. Indian tribes have rich bodies of tribal law and robust court sysems. Those laws are different in each of the 567 tribal jurisdictions. Any attorney wanting to work in a tribal community must know the laws of that tribe. Learning tribal laws is not as simple as running a quick internet search. It may not be handily codified either. It will likely require diligent research within that community. You may need to obtain local co-counsel. Respecting and using tribal law and tribal institutions is a benefit to all the parties involved.

 

Danielle Her Many Horses

Deputy Executive Director/ General Counsel

National Indian Gaming Association

224 2nd Street SE

Washington, DC 20003

202.546.7711 main

202.548.3819 direct

 www.indiangaming.org

 

About Danielle Her Many Horses and NIGA

My name is Danielle Her Many Horses. I am Oglala Lakota, born and raised on the Pine Ridge Indian Reservation. I serve as Deputy Executive Director and General Counsel for the National Indian Gaming Association. National Indian Gaming Association is an intertribal trade organisation of federally recognised Indian Tribes in the United States of America with the mission of protecting and preserving tribal sovereignty and the ability of Tribes to attain economic self-sufficiency through gaming and other forms of economic development. The common commitment and purpose of NIGA is to advance the lives of Indian peoples economically, socially, and politically. NIGA operates as an educational, legislative, and public policy resource for tribal policy makers as well as the public, on issues related to Indian gaming and tribal community development.

 

 [1] Ancillary revenues include hotels, food and beverage, entertainment, and other activities related to a tribal government’s gaming operation.

By:

Ramni Taneja[1]

 

“The beauty of the Indian Constitution is that the entire structure of the country is based thereupon. It is the very pillar upon which the democracy of India stands”[2].

These eloquent words aptly summarise the letter and spirit of the Constitution of India.

India has a sophisticated legal system, with a written Constitution. Each State has its own hierarchy of civil and criminal Courts. Each State has a High Court. The Supreme Court of India (SCI), which is the highest court of appeal in India has played a very significant role in interpreting the Constitution and in maintaining a just and fair balance between the rights of citizens/persons and the requirements of the State.

The law declared by the SCI is binding on all the courts in India[3] thereby reflecting the incorporation of the doctrine of precedent, (as understood in English jurisprudence).

The SCI exercises, inter alia, the following jurisdictions deriving its powers to do so under the Constitution of India: original jurisdiction [Article131], appellate civil jurisdiction [Articles 132 and 133], appellate criminal jurisdiction [Articles 132 and 134]. Special Leave Petitions are filed under Article 136 of the Constitution of India. It also has review jurisdiction [Article 137].

Article 32(2), which is the cornerstone of fundamental rights is couched in the following clear terms:

“The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.”

 

Since the establishment of the Supreme Court of India in 1950, it has pronounced noteworthy decisions, which have left their imprimatur in constitutional and international jurisprudence. It has delivered judgements on many legal subjects: i.e. constitutional law, fundamental rights, human rights, environmental law, private and public international law, to name a few, and of course, the famous concept of public interest litigation (PIL). It is renowned for its “judicial activism”, an expression that has often been the subject of continuing debate.

The expression ‘PIL’ has been considered in a few judgements of the Supreme Court of India. A trenchant description of a PIL, is given in Kushum Lata v. Union of India[4]:

 

“Public interest litigation which has now come to occupy an important field in the administration of law should not be ‘publicity interest litigation’ or ‘private interest litigation’ or ‘politics interest litigation’ … The courts of justice should not be allowed to be polluted by unscrupulous litigants by resorting to the extraordinary jurisdiction.”

 

The right against custodial violence was upheld by the Supreme Court of India in Nilabati Behera v. State of Orissa.[5] In this case, the court while reiterating the availability of some fundamental rights to arrested persons and detainees especially those available under Article 21, further held that “for violation of the Fundamental Rights to life or basic human rights, the defence of sovereign immunity is not available to the state for the established violation of the rights guaranteed by the Constitution of India under Article 21”.

The rights of an arrested person were considered in D.K. Basu v. State of West Bengal[6]. The SCI has given various directions concerning the rights available to arrested persons, which directions have to be followed by various State authorities.

In Vishaka v. State of Rajasthan[7], the SCI has laid down guidelines for the prevention of sexual harassment of women in the workplace. This has ultimately led to the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

The High Court of any State in India is at the head of a State’s judicial administration. Article 226 of the Constitution of India states that notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs. The High Courts in India have been extremely active in protecting the rights of citizens and persons under Article 226.

To conclude this very brief overview, I am reminded of the erudite speech on Law Day on 26 November 2011 given by the SC of India’s former Chief Justice S H Kapadia:

 

“Judicial independence is one of the essential elements of Rule of Law. Every civilized society has seen the need for an impartial and independent judiciary. The principle of Judicial Independence has acquired renewed significance, since the Constitution of India has conferred on the Judiciary the power of judicial review. However, keeping in mind the doctrine of Separation of Powers, Judiciary has to exercise considerable restraint to ensure that the surcharged democracy does not lead to a breakdown of the working of Parliament and the Government. The Judiciary needs to work in the area demarcated by the Constitution”.

 

[1] Advocate, Supreme Court of India, New Delhi

[2] Chief Justice of India, Mr Justice  V. N. Khare in Union of India vs. Naveen Jindal:  2004 2 SCC 510 paragraph 27

[3] Article 141 of the Constitution of India

[4] (2006) 6 SCC 180

[5] 1993 SCR (2) 581

[6] (1997) 1 SCC 216

[7] (1997)  6 SCC 241