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Q&A: New IBA president Rivkin talks protecting legal privilege and tackling judicial corruption

Debevoise & Plimpton co-head of arbitration David Rivkin has set himself up for a busy two years as the president of the International Bar Association (IBA), the largest legal network in the world with more than 40,000 members, as he seeks to win climate change sufferers refugee status, dent judicial corruption and protect legal independence from government hacking. Rivkin talks to Tom Moore on his plans for the body.

In your presidential programme you listed tackling judicial corruption as a core goal for the IBA. How much clout does the organisation really have?

Judicial corruption is a problem throughout the world and for civil society. The IBA can be very effective because any incident of judicial corruption involves lawyers, and as a global legal organisation of lawyers and bar associations, we can work to better understand the issues and implement solutions. I plan to strengthen our ties with the World Bank, the OECD, UNODC, and other organisations that focus on corruption and judicial integrity.

What do you hope to achieve with your taskforce on Climate Change Justice?

The IBA’s report contained many recommendations for the short, medium and long term. I asked our committees to focus on how to implement the recommendations within their expertise and we are forming working groups on legal remedies and adaption issues. For example, right now, those who are displaced by climate change are not considered refugees by international standards. If an island is flooded or if farmers can no longer farm their land, they must move. International law needs to change to recognise people displaced by climate change. They should be afforded the same rights under international law as those displaced because of war.

But what responsibility do states have that have created the climate change? What rights do individuals affected by climate change have? These issues could be treated in a model statute on remedies or through an international court on the environment.

How would this work and how realistic is it that countries would sign up?

There’s no question it’s a difficult subject politically but we’ve seen more momentum this year towards recognising climate change and hopefully towards a meaningful treaty in Paris [at the United Nations Climate Change Conference in November]. We plan to work with various organisations to try to include human rights language in the Paris Treaty.

We expect to have a draft of a model remedies statute by the time of the IBA annual meeting in September 2016 and states could then decide to enact it. An International Court on the Environment would require an international treaty. We are the first generation to understand climate change and we are the last generation to have the ability to do anything about it.

What do you make of criticism surrounding TTIP and in particular, the clause that would send disputes to arbitration?

My problem with opponents of TTIP is that many of the arguments are not based on facts. States don’t lose 99% of the time, in fact, they win the majority of time and even when they lose they usually only pay out a small percentage of the costs.

The biggest criticism of investment treaty arbitration is that public interest is not considered, but it already has mechanisms to take into account public interest. The system has already moved towards strengthening that with the new transparency rules by UNCITRAL, and the revised ICSID rules permit more open proceedings so that NGOs have the ability to be involved.

It’s important as governments consider TTIP that the public knows the facts. That’s a role neutral institutions like the IBA can provide.

You’ve pledged to address challenges to the independence of the legal profession, including government and intelligence agencies breaking client privilege. How do you hope to do that?

Some governments have sought to bring the regulation of lawyers under government control rather than respecting the independence of the profession. We have a task force to look at all of those issues. By understanding the common threads in those threats and understanding why governments have sought to take away the independence of the profession and not respect privacy, the IBA can do more to reduce such challenges in the future.

There isn’t enough understanding among the general public of the role that lawyers play. Few other professions do as much in the public interest as lawyers. In order for us to serve the public and act as a check on government power, lawyers need to remain independent. The IBA can do more to help the public understand the role lawyers’ play. The more they understand it, the less governments will be able to infringe on our independence.

But do lawyers challenge governments enough? It’s rare to find a top City firm acting against a big bank or the government because of their own financial interests. Do you think lawyers need to do that more?

The IBA and our Bar association members encourage others to take on the needs of clients wherever they may fall and to continue to respect the role of lawyers as a check on government.

Our own experience at Debevoise is interesting, as for many years we have represented inmates at Guantanamo and have brought claims seeking their release. At the height of the Bush administration, one of their defense department officials wrote an op-ed criticising Debevoise and other law firms, for supposedly representing terrorists and specifically asked corporate clients of the firms whether they should support firms representing terrorists.

That was an attempt to put pressure on us, but it had exactly the opposite effect. Our partners received dozens of phone calls from clients saying ‘congratulations, we’re glad you’re doing that’ and the official resigned because of that incident.

What made you take up a role on President Obama’s National Finance Committee for the 2008 and 2012 presidential elections?

I have always been interested in politics. In 2007, after having gone through a rough time in the Bush years, we really needed a president who could change our government, the way we interacted with the rest of the world and our respect for human rights, which the Bush administration had not respected.

As soon as Obama announced his candidacy I got in touch with people on his campaign and I asked what I could do to help. I started raising money and was put on the national finance committee for that campaign and continued for the next one.